THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION, KIMBERLEY)
In the matter between:
NEILLAN DE KOKER
CLIVE DE KOKER
CLYDE DE KOKER
and
Reportable/Not Reportable
Case no: CA&R 25/2025
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
THE STATE RESPONDENT
Neutral citation: N De Koker and Others v The State (CA&R 25/2025) (20 March 2026).
Coram: PHATSHOANE DJP and GROENEWALDT AJ.
Heard: 2 February 2026.
Delivered: 20 March 2026.
Summary: Criminal Law - Appeal against conviction and sentence - Murder read
with s 51(1) of the Criminal Law Amendment Act 105 of 1997 - Sentence of life
imprisonment - No demonstrable material misdirection shown - No substantial and
compelling circumstances warranting deviation from prescribed minimum sentence -
Appeal dismissed.
2
ORDER
On appeal from: The Magistrates' Court for the Regional Division of Northern Cape,
Kimberley (Acting Regional Court Magistrate Padayachee, sitting as court of first
instance):
1. The first and third appellants' appeal against their conviction and sentence is
dismissed.
2. The first and third appellants are to present themselves at the Kimberley
Correctional Centre within 72 hours from the date of this order to commence
serving their sentences.
JUDGMENT
Groenewaldt AJ (Phatshoane DJP concurring)
[1) The appeal by Messrs Neillan De Koker, Clive De Koker, and Clyde De Koker,
the first to the third appellants, has its origin in the Regional Court, Kimberley (the trial
court), where they were arraigned before Magistrate K Padayachee on a charge of
murder read with the provisions of s 51(1) of the Criminal Law Amendment Act1 ("the
CLAA''). The first and third appellants are brothers. The second appellant is their
father. They were found guilty and sentenced to life imprisonment. This appeal is
directed at both their convictions and sentences in terms of s 309(1 )(a) of the Criminal
Procedure Act2 ("the CPA"), which affords them an automatic right to appeal to this
1 105 of 1997.
2 51 of 1977.
3
Court. We have been notified that the second appellant, Mr Clive De Koker, passed
away on 2 February 2025. We were further informed that the remaining appellants are
on bail pending the outcome of this appeal.
[2] The first appellant raised no less than nine grounds of appeal. In the main, it was
contended on his behalf that the trial court erred in finding that he acted in common
purpose with the other appellants. It was further argued that the trial court accepted
the evidence of Mr Sakhekile Mtirara, a single witness, in circumstances that it ought
not to have done so. In addition, the trial court failed to find that there had been
discrepancies in the State's case and to make a finding regarding the severe assault
on the deceased and the total lack of injuries recorded on the post-mortem report. It
was further argued that the trial court failed to make a finding on whether the deceased
could have been stabbed before he entered the scene on Evans Street, Kimberley
North. It was further contended that the trial court erred in not finding that the first
appellant had no intention to kill the deceased. Regarding the sentence. it was argued
that the trial court erred in failing to find that substantial and compelling circumstances
existed that warranted a deviation from the statutorily prescribed sentence.
[3] The third appellant's grounds of appeal can be summarised as follows. It was
argued on his behalf that he had no intention to kill the deceased and had been
unaware that the first appellant had a knife in his possession. In any event, so it was
argued, the third appellant was not on the scene when the deceased was stabbed. He
also did not foresee that the deceased would be killed when the appellants chased
after him. It was further argued that the trial court erred in not making a distinction
between two separate scenes. First. where the deceased was stabbed in the absence
of the third appellant, and second, where the assault occurred. It was further
of the third appellant, and second, where the assault occurred. It was further
contended that the third appellant's conduct was insignificant in relation to the first
appellant's. The trial court's verdict is also assailed on the basis that it found that the
appellants acted in furtherance of a common purpose and had the intention to kill the
deceased. On the sentence, the third appellant took issue with the purported failure
by the trial court to find that there were substantial and compelling circumstances that
justified a deviation from the imposition of the prescribed sentence.
4
[4] The appellants admitted, in terms of s 220 of the CPA, that the first and the third
appellants assaulted the deceased with a golf club and a sjambok, respectively. The
State led the evidence of Mr and Mrs Mtirara (the Mtiraras), a married couple residing
on Evans Street, where the alleged offence is said to have occurred. Mr Mtirara
testified that the first appellant produced a knife from the left-hand side of his hip with
which he stabbed the deceased on the left-hand side of his chest.
[5] Mr Mtirara described the two scenes. First, where the deceased was stabbed
and second, where he was subsequently assaulted. He testified that the deceased ran
from the first appellant after the infliction of the stab wound. The first appellant also
had a golf club with which he repeatedly assaulted the deceased. According to Mr
Mtirara, the first appellant stabbed the deceased whilst a certain Khalied was standing
between the first appellant and the deceased. Much was made that he could not have
witnessed the stabbing because his view was obstructed. He dispelled that notion.
[6] Mr Mtirara testified that while the first appellant was busy attacking the deceased ,
a minibus driven by the second appellant arrived on the scene. The second and third
appellants alighted from that vehicle. The second appellant kicked the deceased on
his head with a booted foot while he was lying down. At some point, Mr Mtirara
observed the deceased crawling and asking for some water to drink. During cross
examination, Mr Mtirara testified that he later heard that the third appellant assaulted
the deceased with a sjambok, which assault he did not witness. Mr Mtirara also
confirmed that his wife was not next to him during the stabbing incident.
[7] Mrs Mtirara did not witness the first appellant stab the deceased. She testified
that she was in and out of her house during that fateful morning. She further says that
she observed the first appellant repeatedly assaulting the deceased with a golf club
she observed the first appellant repeatedly assaulting the deceased with a golf club
whilst the third appellant struck him with a sjambok. She explained that before the
assault, the deceased had no injuries.
[8] The first and third appellants testified in their defence. The first appellant
intimated that approximately at 09:00 on the morning of the day in question, he and
the third appellant and other individuals were walking home after visiting a nightclub
the previous evening. A certain Darrion went in search of food, and the others returned
5
to their homes. When Darrion was not returning home, the first and third appellants
went looking for Darrion. Along the way, the first and the third appellants were robbed
by four individuals armed with knives, one of whom was the deceased. The deceased
was not actively engaged in the robbery but stood aside observing only what
happened, but the items collected from the robbery were allegedly given to him.
(9) The first and third appellants went home to report what had transpired. The first
and third appellants, accompanied by their father {the second appellant), entered their
father's minibus and drove to a police station. They were not assisted as the police
officers were changing shifts. They then, armed with a golf club and a sjambok, went
in search of the robbers and spotted the deceased. The first appellant alighted from
the minibus and chased after the deceased while the second and third appellants
followed him in the minibus. The first appellant caught up with the deceased and
admitted to assaulting him with a golf club. He denied having stabbed the deceased .
The diction the first appellant used for striking the deceased with a golf club repeatedly
was that he "wanted to teach him a lesson". The second and third appellants claimed
to have arrived on the scene after the assault. The second appellant denied that he
ever kicked the deceased. The third appellant acknowledged that he struck the
deceased with the sjambok.
[10) During his examination-in-chief, the first appellant, for the first time, raised a plea
of self-defence. He claimed that the deceased had a knife while he carried a golf club.
He assaulted the deceased out of fear that the deceased would stab him because
when he chased the deceased, he noticed that the deceased had put his hand in his
side, and he saw a knife on the person of the deceased.
Ad Conviction
[11] It is trite that a court of appeal may only interfere with the findings of a trial court
[11] It is trite that a court of appeal may only interfere with the findings of a trial court
where the court misdirected itself on the facts and/or the law. A court of appeal is also
not at large to depart from the trial court's findings of fact and credibility, unless they
are vitiated by irregularity. The trial court is better placed to observe the witnesses and
make credibility findings. The appellant in a criminal appeal must satisfy the appellate
6
court that the verdict was wrong, at least to the extent that the trial court should have
had a reasonable doubt as to his guilt. 3
[121 Absent any demonstrable and material misdirection, an appellate court would
not conclude that the trial court was wrong in its adjudication of the matter. If the
findings of fact remain undisturbed on appeal, the ruling that proof beyond a
reasonable doubt was discharged becomes inescapable. Similarly, if the trial courts
do not misdirect themselves on the facts and law in the application of a cautionary
rule, but properly evaluate the evidence, a court of appeal will not readily depart from
their conclusions.4
[13] The trial court dealt in detail with the versions of the Mtiraras and found that
their contradictions were not material. They observed the incidents in a fluid scene
from different stages and vantage points. In this respect, the Mtiraras versions differed
in that Mr Mtirara had witnessed the stabbing, whereas Mrs Mtirara had not. Insofar
as the court a quo found, correctly in my view, that the events occurred in a rapidly
moving scene, these discrepancies are to be expected. More so, because it is to be
remembered that the evidence is to the effect that there were occasions where Mrs
Mtirara was in and out of the house. The fact that the evidence of the two direct
witnesses differed regarding certain events lends credence to the observation that
they were trustworthy and reliable, as they could easily have adjusted their accounts.
[14] In relation to the contradictions between the evidence of Mr Mtirara and his
police statement, it is common knowledge that police statements are frequently not
taken with the degree of care, accuracy, and completeness that is desirable.5 In S v
Govender and Others 2006 (1) SACR 322 (E), the Court, expanding on the foregoing
observations made in S v Xaba6 observed further thus:
' ... as was pointed out in S v Bruiners en 'n Ander 1998 (2) SACR 432 (SE) at 437h, the
' ... as was pointed out in S v Bruiners en 'n Ander 1998 (2) SACR 432 (SE) at 437h, the
purpose of a police statement is to obtain details of an offence so that a decision can be made
whether or not to institute a prosecution, and the statement of a witness is not intended to be
a precursor to that witness' evidence in court. Quite apart from that, however , there are other
3 Rex v Dh/uwayo and Another 1948 (2) SA 677 (A) at 705 - 706.
4 S v Leve 2011 ( 1) SACR 87 (ECG) para 8.
5 S v Xaba 1983 (3) SA 717 (A) at 730B - C.
6 Ibid.
7
problems associated with police statements. They are usually written in the language of the
person who records them. Frequently the use of an interpreter is required and, invariably , such
interpreter is also a policeman and not a trained interpreter. The statement , accord ing to my
experience , is also usually a summary of what the policeman was told by the witness and is
expressed in language or in terms normally used by him and not necessarily the witness.'7
Accordingly, the court a quo cannot be faulted for concluding that Mr Mtirara's
statement was taken in haste, was not read back to him, and was incorrectly captured.
[15] Mr Mtirara is a single witness in relation to the stabbing incident. In S v
Mahlangu and Another8, it was held that:
'The court can base its finding on the evidence of a single witness , as long as such evidence
is substantially satisfactory in every materia l respect, or if there is corroboration .'
Mr Mtirara was forthright in his account that he saw the first appellant stab the
deceased with a knife. He was also frank to say that he did not witness the third
appellant assault the deceased with a sjambok. He clearly testified on what he had
observed and did not embellish his evidence. In my view, the trial court was correct in
having found his evidence to be satisfactory in all material respects.
[16] The first appellant's version that the stab wound to the chest could have been
inflicted elsewhere before he came across the deceased is fraught with difficulties. Mr
Mtirara also testified that the deceased had no injuries "whatsoever" before the
assault. The first appellant chased after the deceased. The latter must have run so
fast that the first appellant requested that Khalied, who stood in the way, apprehend
him. It is common cause that the deceased died because of the stab wound. Therefore,
it is highly improbable that the deceased would have run at high speed if he had
already been injured elsewhere. Immediately after being stabbed, the deceased
already been injured elsewhere. Immediately after being stabbed, the deceased
crawled. The only inference to be drawn, supported by all the objective evidence, is
that the deceased was stabbed at the scene by the first appellant.
[17] The fact that the deceased was stabbed with a knife also finds corroboration in
the post-mortem report. The pathologist found that a blade of a sharp object
penetrated the left chest cavity through the third intercostal space. The blade stabbed
7 At 324J-325C.
8 2011 (2) SACR 164 {SCA) para 21.
8
the upper lobe of the left lung and then penetrated the pulmonary trunk. A large amount
of blood was collected in the left chest cavity, which caused the left lung to collapse.
[18) The trial court found that the appellants acted in furtherance of a common
purpose in perpetrating the offences. In S v Mgedezi and Others9 the following
requirements were laid down:
'In the absence of proof of a prior agreement, accused No 6, who was not shown to have
contributed causally to the killing or wounding of the occupants of room 12, can be held liable
for those events, on the basis of the decision in S v Safatsa and Others 1988 (1) SA 868 (A),
only if certain prerequisites are satisfied. In the first place, he must have been present at the
scene where the violence was being committed. Secondly, he must have been aware of the
assault on the inmates of room 12. Thirdly, he must have intended to make common cause
with those who were actually perpetrating the assault. Fourthly, he must have manifested his
sharing of a common purpose with the perpetrators of the assault by himself performing some
act of association with the conduct of the others. Fifthly, he must have had the requisite mens
rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or
he must have foreseen the possibility of their being killed and performed his own act of
association with recklessness as to whether or not death was to ensue.·
[19) As already alluded to, the first and third appellants, together with their father,
left their home on the day in question to retaliate against the robbers. On the first
appellant's own version, the appellants were furious, and they decided to look for the
robbers. He wanted to teach the deceased a lesson. This involves planning and an
agreement to cause harm. The type of weapons utilised, the planning of the attack,
the severity of the force inflicted, and the fact that the appellants were not inebriated,
the severity of the force inflicted, and the fact that the appellants were not inebriated,
demonstrate that they subjectively foresaw the possibility of the death ensuing from
their conduct. and reconciled themselves with that possibility. In addition, the third
appellant associated himself with the acts of the first appellant by assaulting the
deceased with a sjambok when he was already seriously injured. The appellants were
all at the scene; although they may not have arrived at the same time, they acted in
pursuit of their common purpose.
9 1989 {1) SA 687 (A) at 705I-706B. See also S v Jama and Others 1989 (3) SA 427 (A) at 436D - G.
9
[20] The first appellant's belated plea of acting in self-defence ought to be rejected
outright. Surely, this ground of justification could have been raised from the outset by
the first appellant to dispute the murder charge. It is significant that this defence was
not put to the Mtiraras. The knife that the first appellant said he saw the deceased
carrying when fleeing was not visible when he assaulted the deceased.
[21] On a conspectus of the evidence as a whole, the appellants' version cannot
reasonably possibly be true and was correctly rejected by the trial court as far-fetched
and improbable. The appellants' appeal against their conviction must fail.
Ad Sentence
[22] It is trite that sentencing is pre-eminently a matter falling within the discretion of
the sentencing court.10 An appeal court has very limited powers to interfere with a
sentence. It would do so where there is material misdirection by the trial court which
vitiates its exercise of that discretion.11 The appellants were sentenced to life
imprisonment in terms of s 51(1) of the CLAA. The sentences specified in the CLAA
are not to be departed from for flimsy reasons. The appellants had to demonstrate that
they had substantial and compelling circumstances that would warrant a deviation
from the imposition of that form of punishment.12
[23] The personal circumstances of the appellants were as follows. The first
appellant was 29 years old at the time of sentencing. He was unmarried with two
children. He completed Grade 11 at school. He is a first offender and was employed
as a driver earning R7 500 per month. The third appellant was 26 years old at the time
of sentencing. Similarly, he completed Grade 11 at school. He was employed as a
data capturer at the Department of Social Development, earning R3 500 per month.
He is unmarried with no dependents.
[24) In S v Vilakazi13, the Supreme Court of Appeal trenchantly said:
10 S v Rabie 1975 (4) SA 855 (A) at 8570 - E.
10 S v Rabie 1975 (4) SA 855 (A) at 8570 - E.
11 S v Ma/gas 2001 (1) SACR 469 (SCA); 2001 (2) SA 1222 (SCA) para 12.
12 S v PB 2013 (2) SACR 533 (SCA) para 20.
13 2009 (1) SACR 552 (SCA) para 58.
10
' .. .In cases of serious crime the personal circumstances of the offender, by themselves, will
necessarily recede into the background. Once it becomes clear that the crime is deserving of
a substantial period of imprisonment the questions whether the accused is 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. But they are nonetheless relevant in
another respect. A material consideration is whether the accused can be expected to offend
again.'
[25] The appellants armed themselves and went in search of the deceased. They
had time to reconsider their actions, but did not. They resorted to self-help with tragic
consequences . This is aggravating . Our country is premised on the rule of law. Acts
of vigilantism , such as the present, have no place in our society and cannot be
countenanced .
[26) It is apposite to restate the trite principle that a court of appeal does not enjoy
an unfettered power to interfere with the sentence imposed by a trial court. The extent
of the power to interfere with sentence on appeal was set out as follows in S v
Ma/gas 14:
'The mental process in which courts engage when considering questions of sentence depends
upon the task at hand. Subject, of course, to any limitations imposed by legislation or binding
judicial precedent, a trial court will consider the particular circumstances of the case in the light
of the well-known triad of factors relevant to sentence and impose what it considers to be a
just and appropriate sentence. A Court exercising appellate jurisdiction cannot, in the absence
of material misdirection by the trial court, approach the question of sentence as if it were the
trial court and then substitute the sentence arrived at by it simply because it prefers it. To do
so would be to usurp the sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled
to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court has no relevance. As it is
said, an appellate Court is at large. However, even in the absence of material misdirection, an
appellate Court may yet be justified in interfering with the sentence imposed by the trial court.
It may do so when the disparity between the sentence of the trial court and the sentence which
the appellate Court would have imposed had it been the trial court is so marked that it can
14 2001 (2) SA 1222 (SCA) para 12.
11
properly be described as 'shocking', 'startling' or 'disturbingly inappropriate'. It must be
emphasised that in the latter situation the appellate Court is not at large in the sense in which
it is at large in the former. In the latter situation it may not substitute the sentence which it
thinks appropriate merely because it does not accord with the sentence imposed by the trial
court or because it prefers it to that sentence. It may do so o nly where the difference is so
substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in
the fonner situation.'
[27] The appellants did not show any substantial and compelling circumstances
warranting a departure from the prescribed sentence of life imprisonment. In addition,
I am unpersuaded that the sentence imposed is unjust or disproportionate to the crime
committed. It certainly does not induce any sense of shock. Accordingly, the
appellants' appeal against their sentences ought to fail. In the result, I make the
following order:
Order
1. The first and third appellants' appeal against their conviction and sentence is
dismissed.
2. The first and third appellants are to present themselves at the Kimberley
Correctional Centre within 72 hours from the date of this order to commence
serving their sentences.
: /~
CTING JUDGE , • • HIGH COURT
NORTHERN CAPE DIVISION
12
Appearances
For the 1st & 3rd Appellants : Adv J Harmse
Instructed by: Justin Pillay and Associates.
For the Respondent: Ms Kruger
Instructed by: Director of Public Prosecutions.