Reportable: NO
Circulate to Judges: ~O
Circulate to Magistrates : NO
Circulate to Regional Magistrates : NO
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
CASE NO: CA 23/2025
REGIONAL COURT CASE NO: RC 62/2021
In the matter between:
ABRAM ABEBE ERGICHO APPELLANT
And
THE STATE RESPONDENT
CORAM: SCHOLTZ AJ et FOURIE AJ:
Judgment is handed down electronically by distribution to th e parties ' legal
representatives by e-mail. The date that the judgm ent is deemed to be handed
down is 20 February 2026
ORDER
The following order is made:
2
(i) The appeal against conv iction and sentence is dismissed;
(ii) The conviction and sentence are confirmed.
JUDGMENT
FOURIEAJ
INTRODUCTION
[l] This is a criminal appea l against both conv iction and sentence. Appellant
was convicted by the Regional Court in Lichten burg, North West Province
on 13 December 2023 on two counts of robbery with aggravat ing
circumstances and one count of pre-meditated murder.
[2] The charges preferred against the accused were formu lated as follows:
Count 1: That the Appellant is guilty of the crime of Robbery with
aggravating circumstances as intended in terms of section 1 of
act 51 of 1977 and read with sections 262 of Act 5 1 of 1977
and further read with section 51 (2) (a) of the Criminal Law
Amendment act 105 of 1997 in that upon or about 09 May
2018 and at or near Lichtenburg in the Regio nal Division of
North West, the accused did unlawfully and intentiona lly
assault Mpho Hlome and did then and with force take the
follow ing items from him to wit, pies to the value at around
Rl 50.00, his property in his lawful possession. Aggravating
circumstances as defined in section l of act 51 of 1977
prevailed in that the accused, when the crime was comm itted
threatened complainant with a firearm.
Count 2: That the accused is gui lty of the crime of Robbery with
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aggravating circumstances as intended in terms of section 1 of
act 51 of 1977 and read with sections 262 of act 51 of 1977
and further read with sect ion 51 (2) (a) of the Crimina l Law
Amendment act 105 of 1997 in that upon or about 09 May
2018 and at or near Lichtenburg in the Regional Division of
North West, the accused did unlawfully and intentionally
assault Jan Nel Louw and did then and with force take the
following items from him to wit, Rl 50.00 cash, a cell phone
valued at R500.00 and a K ia Picanto motor vehicle valued at
R 40 000.00, his property or in his lawful possession.
Aggravating circumstances as defined in section 1 of Act 51
of 1977 prevailed in that the accused , when the c rime was
committed he threatened compla inant with a firearm.
Count 3: That the accused is guilty of the crime of Murder (read with the
provisions of Section 51 (1 ), Partl of schedule 2, of the
Crimina l Law Amendment act 105 of 1997, as amended and
further read with section 98, 256, 258, 270 and 276 of the
Criminal Procedure Act 51 of 1977, as amended) in that upon
or about 09 May 2018 and at or near Lichtenburg in the
Regiona l Division of North West, the accused did unlawfully
and intentionally kill Francois Swart , a male person.
[3] The appellant was legally represented for the duration of his trial and
pleaded not guilty to all the charges. As a p lea explanation, the appe llant
denied being in Lichtenburg on the date of09 May 2018.
[ 4] Pursuant to the conclus ion of the trial, the Court a quo convicted the
appellant on all 3 counts and the following sentence,
(a) Count 1;
(b) Count 2;
(c) Count 3;
Fifteen years imprisonment;
Fifteen years imprisonment;
Life imprisonment;
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( d) In terms of section 103 ( 1) Act 60 of 2000 the appellant was declared
unfit to possess a firearm.
[5] The matter comes before us in terms of the provisions of section 309 (1)
(a) of the Criminal procedure Act 51 of 1977, as amended by the provisions
of the Judicial Matters Amendment Act 42 of 2023 entitling the appe llant
to an automatic right of appeal on both his conviction and sentencing, once
the court a quo has imposed a sentence of life imprisonment , as was done
on count 3.
THE GROUNDS OF APPEAL
AD CONVICTION
[6) The appe llant submits that the Court a quo erred in the following aspects:
(a) In finding that the state proved the guilt of the appe llant beyond a
reasonable doubt;
(b) The Court erred in fai ling to properly analyse, or evaluate the
evidence of the state witnesses;
(c) The Court misdirected itself by finding the accused guilty of pre
meditated murder whilst pre-meditation was not alleged by the state
in the charge sheet;
( d) The Court erred in rejecting the appe llant's evidence;
(e) The Court misdirected itself by accept ing dock identification
evidence without exercising the necessary caution
AD SENTENCE
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[7] The appellant subm its that the Court a quo erred in the following respects:
(a) By sentencing the appellant to an effective term of life imprisonment
in respect of count 3 of murder
(b) By not imposing a shorter term of imprisonment more particularly
in view of
(i) The age of the appellant;
(ii) The period that the appellant spent in custody awaiting the
finalisation of the matter being (3) years;
(iii) The Appellant is a first oIIender.
(c) In overemp hasizing the following factors:
(i) The seriousness of the offence;
(ii) The deterrent effect of the sentence;
(iii) The interest of the society.
( d) The sentence imposed is strikingly inappropriate in that it is out of
proportion to the totality of the accepted facts in mitigation.
DISCUSSION ON THE CONVICTION
[8] The core issue in this appea l relates to an analysis of the evidence which
was adopted by the lower court.
[9] The Constitutional Court, in the matter of Makate v Vodacom (Pty) Ltd
2016 (4) SA 121 (CC), par 38 stated as follows:" In our system, as in many
similar systems of appeal, the cold record placed before the appeal court
does not capture all that occurred at the trial. The disadvantage is that the
appeal court is denied the opportunity of observing witnesses testify and
6
drawing its own inferences from their demeanour and body language. On
the contrary, this is the advantage enjoyed by every trial court. Hence an
appeal court must defer to the trial court when it comes to factual
findings. In Powell & Wife, Lord Wright formulated the principle thus:
"Not to have seen the witnesses puts appellate judges in a permanent
position of disadvantage as against the trial judges, and, unless it can be
shown that he has failed to use or has palpably misused his advantage, the
higher court ought not to take the responsibility of reversing conclusions
so arrived at, merely on the result of their own comparisons and criticisms
of the witnesses and of their own view of the probabilities of the case."
[1 OJ The powers of a Court of Appeal was set out in S v Monyane and Others
(160/01) [2006] ZASCA 113; [2006] SCA 141 (RSA); 2008 (1) SACR 543
(SCA) (23 November 2006) as follows in par 15:
"This court's powers to interfere on appeal with the findings of fact of a
trial court are limited. It has not been suggested that the trial court
misdirected itself in any respect. Jn the absence of demonstrable and
material misdirection by the trial court, its findings of fact are presumed to
be correct and will only be disregarded if the recorded evidence shows
them to be clearly wrong (S v Hadebe and Others 1997 (2) SACR
641 (SCA) at 645e-j). This, in my view, is certainly not a case in which a
thorough reading of the record leaves me in any doubt as to the correctness
of the trial court's factual findings. Bearing in mind the advantage that 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 (S v Francis 1991 (1) SACR 198 (A)
at 204e)."
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[11] In SITHOLE 1999 (1) SACR 585 (W) at 590 Nugent J & Schwartzman J
stated as follows: "There is only one test in a criminal case, and that is
whether the evidence establishes the guilt of the accused beyond
reasonable doubt. The corollary is that an accused is entitled to be
acquitted if there is a reasonable possibility that an innocent explanation
which he has proffered might be true " ...
[12] And further: - Khumalo v S (723/2020) [2022] ZASCA 39 at par 19:"
considering all the circumstances of this case, I am of the view that the
evidence tendered by the state weighs so heavily as to exclude any
reasonable doubt about the applicant's guilt. Expressed differently, the
mosaic of the evidence as a whole is, beyond reasonable doubt,
inconsistent with the applicant's innocence"
THE RELEVANT EVIDENCE BEFORE THE COURT A QUO IN RESPECT
OF THE CONVICTION
[1 3] The facts of the matter are simple and essentially undisputed. On 09 May
20 18 around 0 1 h00 am at the Shell Garage in Lichtenburg two perpetrators
entered the garage and robbed items, whilst pointing a firearm at the shop
attendant Mr Mpho Jonas Hlomc. The deceased Francois Swart and Jan
Louw Nel entered the shop whereafterthe deceased was shot. The deceased
died in hospital on 05 June 2018. The perpetrator who shot the deceased
also pointed a firearm at the head of Jan Louw Nel and took the money he
had. The perpetrator turned to leave but returned demandin g the car keys
of Mr Nel's car. The two perpetrators then left with the car, a Kia Picanto.
[14] The appellant was arrested on 17 December 2020 when Mr Hlome
8
approached police officers infonn ing them that he saw the perpetrator and
he then pointed out the appellant.
[15] The appellant was positively identified by both Mr Hlome and Mr Nel as
the perpetrator who used the firearm. Mr Hlome at first identified the
appellant when he pointed him out to police officers on 17 December 2020
and thereafter at the trial. The identification of the appellant by Mr Nel took
place during the trial where he sat in the accused dock. This type of
identification by Mr Nel is commonly known as a dock identification and
it is trite that such identification must be treated by a court with extreme
caution. Genera lly, a dock identification carries little weight , unless it is
shown to be sourced in independent preceding identification. (See S v
Tandwa and Others 2008 (I) SACR 613 (SCA), par 129-131.)
[16] There was also video footage of the incident available. The state led the
evidence of Warrant Officer Lelanie Dekker who downloade d the video
footage and used still photos to do a facial comparison of the appellant with
control photos. 15 points of similarity between the still photos and the
contro l images of the appellant were found. (See State vs Biyela and Others
(CC67/2019) ZAWCHC203 [2023] ,par 233-246 where the court dealt at
length with the reliability of facial compar ison evidence).
[19] I, therefore, cannot find any misdirection in the trial court's analysis of the
witnesses ' evidence and undoubtedly find that the trial court was correct to
accept the evidence of the witnesses as satisfactory in all material respects.
Thus, the appellant was properly convicted on this evidence.
[17] The appellant's only defense was that of an alibi. He testified that he was
at Setlagole on 09 May 2017. His employer Mr Ahmat was called to
9
confinn that. The a ppellant wanted the court to believe that he w as at
Setlagole from 2016 until he went to Lichtenburg in December 2020. Mr
Ahmat could not confirm the date of 09 May 2018 a nd o nly s tated in
general t erms that the appellant was at Setlago le. He did not specify a
specific date. The appellant and his w itness· s testimonies differed m
various respects for example t he appe llant had friends visiting him m
Setlagole and the reason why appellant left Setlagole in Decembe r 2020.
[18] I, therefore, cannot find any misdirection in the trial court· s finding of
inconsistencies and improbabilities in the evidence of the Appellant and as
such it cannot be reasonably true and is rejected as false.
[19) I , therefore find that the Appeal against conviction stands to be dismissed.
DISCUSSION ON SENTENCING
[20) The court a quo, when finding the appellant guilty specifica lly on Count 3
invoked the provisions of section 51 (1) of The Criminal Law
Amendment Act, Act 105 of 1997 which read: " Notwithstanding any
other law, but subject to subsections (3) and (6), a regional court or a High
Court shall sentence a person it has convicted of an offence referred to in
Part I of Schedule 2 to imprisonment for life "
[21] In respect of Count 1 and 2 the trial court accordingly invoked section 51
(2) of this Act: " Notwithstanding any other law, but subject to subsections
(3) and (6), a regional court or a High Court shall sentence a person it has
convicted of an offence referred to in (a) Part II of Schedule 2, in the case
of a first offender, to impris onment for a period not less than 15 years,·"
[22] Section 51 (3) (a) of this act provides a judicial discretion and states: "If
10
any court referred to in subsection (1) or (2) is satisfied that substantial
and compelling circumstances exists which justifies the imposition of a
lesser sentence than the sentence prescribed in those subsections, it shall
enter those circumstances on the record of the proceedings and must
thereupon impose such lesser sentence .... "
[23] In Mpofu v Minister for Justice and Constitutional Development and
Others (CCT 124/11) [2013} ZACC 15; 2013 (9) BCLR 1072 (CC); 2013
(2) SACR 407 (CC) (6 June 2013) per VAN DER WESTHUIZEN J at [42}
"The inquiry in an appeal against sentence is not whether the sentence
was right or wrong, but whether the Court in imposing it exercised its
discretion properly and judicially. A misdirection that could result in the
setting aside of a sentence on appeal is an error committed by the Court
in determining or applying the facts for assessing an appropriate
sentence. However, a mere misdirection is not by itself sufficient to entitle
a court to interfere with the sentence on appeal. It must be of such a
nature, seriousness or degree that it shows that the Court did not exercise
its discretion or exercised it improperly or unreasonably ".
And per SKWEYIYA J at [64)
" .... Ordinarily, an appellate court can only interfere with the 'sentence of
a lower court where there has been an irregularity that results in a failure
of iustice; the court below misdirected itself to such an extent that its
decision on sentence is vitiated,· or the sentence is so disproportionate or
shocking that no reasonable court could have imposed it. "
(24] And per: S v Jimenez (73/2002) /2003/ ZASCA 2; /2003/ 1 All SA 535
(SCA) (21 February 2003) Coram: OLIVIER, CAMERON JJA et per
LEWIS AJA op (7 J "However, even where a sentence does not seem
11
shockingly inappropriate, a court on appeal is entitled to interfere, or at
least to consider the sentence afresh, if there has been a material
misdirection in the exercise of the sentencing discretion".
[25] S v Robie 1974 (4) 855 AD it was stated that "punishment should fit the
criminal as well as the crime, be fair to the society and be blended with a
measure of mercy according to the circumstances".
At 866 A-C Corbett JA stated:
"A judicial officer should not approach punishment in a spirit of anger
because, being human, that will make it difficult for him to achieve that
delicate balance between the crime, the criminal and the interests of
society which his task and the objects of punishment demand of him. Nor
should he strive after severity,· nor, on the other hand, surrender to
misplaced pity. While notflinchingfromfirmness , where firmness is called
for, he should approach his task with a humane and compassionate
understanding of human frailties and the pressures of society, which
contribute to criminality. it is in the context of this attitude of mind that 1
see mercy as an element in the determination of the appropriate
punishment in the light of all the circumstances of the particular case"
[26] I n S v Anderson 1965 (3) SA 494 (AD) at 495 O-H Rumpff JA in dealing
with the applicable legal princip les affirmed as follows: "These include the
following: the sentence will not be altered unless it is held that no
reasonable man ought to have imposed such a sentence, or that the
sentence it out of all proportion to the gravity or magnitude of the offence,
or that the sentence induce a sense of shock and outrage, or that the
sentence is grossly excessive or inadequate, or that there was an improper
exercise of his discretion by the trial Judge, or that the interest of justice
12
requires it"
[27] For any court to exercise their judicial discretion in terms of Section 51 (3)
(a) of the Criminal Law Amendment Act to justify imposing a lesser
sentence than prescribed , the court must be satisfied that substant ial and
compelling circumstances exist.
[28] In essence the following personal circumstances was placed before the
court a quo was the following:
-The appe llant is 37 years old;
-He has an adult child not residing in South Africa;
-He is not married;
-He educationa l level is equiva lent to Grade 12
-He was employed;
-He was prior to conviction in custody for approximately 3 years
[29] In the matter S vs Malgas 2001 (1) SACR 469 (SCA) Marais AJ dealt
specifica lly with the provisions of Section 51 of the Criminal Law
amendment Act by stating the following: par 7 "the very fact that this
amending legislation has been enacted indicates that Parliament
was not content with that and that it was no longer to be "business as
usual" when sentencing for the commission of the specified crimes "
"In what respects was it no longer to be business as usual? First, a court
was not to be given a clean slate on which to inscribe whatever sentence it
thought fit. Instead, it was required to approach that question conscious of
the fact that the 14 legislatures have ordained life imprisonment or the
particular prescribed period of imprisonment as the sentence which should
ordinarily be imposed for the commission of the listed crimes in the
13
specified circumstances. In short, the legislature aimed at ensuring a
severe, standardised, and consistent response from the courts to the
commission of such crimes unless there were, and could be seen to be, truly
convincing reasons for a different response. When considering sentence the
emphasis was to be shifted to the objective gravity of the type of crime and
the public :S- need for effective sanctions against it. But that did not mean
that all other considerations were to be ignored. The residual discretion to
decline to pass the sentence which the commission of such an offence would
ordinarily attract plainly was given to the courts in recognition of the easily
foreseeable injustices which could result from obliging them to pass the
specified sentences come what may. [9} Secondly, a court was required to
spell out and enter on the record the 15 circumstances which it considered
justifi ed a refusal to impose the specified sentence. As was observed in
Flannery v Halifax Estate Agencies Ltd 5 by the Court of Appeal, "a
requirement to give reasons concentrates the mind, if it is fulfilled the
resulting decision is much more likely to be soundly based --- than if it is
not". Moreover, those circumstances had to be substantial and compelling.
Whatever nuances of meaning may lurk in those words, their central thrust
seems obvious. The specified sentences were not to be departed from lightly
and for flimsy reasons which could not withstand scrutiny. Speculative
hypotheses favourable to the offende,; maudlin sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of the policy
implicit in the amending legislation, and like considerations were equally
obviously not intended to qualify as substantial and compelling
circumstances. Nor were marginal differences in the personal
circumstances or degrees of parti cipation of co-offenders which, but for
[2000] 1 WLR 377 at 381H 5 16 the provisions, might have justified
[2000] 1 WLR 377 at 381H 5 16 the provisions, might have justified
differentiating between them. But for the rest 1 can see no warrant for
deducing that the legislature intended a court to exclude from
14
consideration, ante omnia as it were, any or all of the many factors
traditionally and rightly taken into account by courts when sentencing
offenders. The use of the epithets "substantial " and "compelling" cannot
be interpreted as excluding even from consideration any of those factors.
They are neither notionally nor linguistically appropriate to achieve that.
What they are apt to convey, is that the ultimate cumulative impact of those
circumstances must be such as to justify a departure. It is axiomatic in the
normal process of sentencing that, while each of a number of mitigating
factors when viewed in isolation may have little persuasive force, their
combined impact may be considerable. Parliament cannot have been
ignorant of that. There is no indication in the language it has employed
that it intended the enquiry into the possible existence of substantial and
compelling circumstances justifying a departure, to proceed in a radically
different way, namely, 17 by eliminating at the very threshold of the enquiry
one or more factors traditionally and right~y taken into consideration when
assessing sentence. None of those factors have been singled out either
expressly or impliedly for exclusion from consideration"
[30] In State vs Matyityi 2011 (]) SACR 40 at par 23 Ponnan JA states the
following:
"Despite certain limited successes there has been no real let-up in the
crime pandemic that engulfs our country. The situation continues to be
alarming. It follows that, to borrow from Ma/gas, it still is 'no longer
business as usual'. And yet one notices all too frequently a willingness on
the part of sentencing courts to deviate from the minimum sentences
prescribed by the legislature for the flimsiest of reasons - reasons, as here,
that do not survive scrutiny. As Ma/gas makes plain courts have a duty,
despite any personal doubts about the efficacy of the policy or personal
aversion to it, to implement those sentences. Our courts derive their power
15
from the Constitution and like other arms of state owe their fealty to it. Our
constitutional order can hardly survive if courts fail to properly patrol the
boundaries of their own power by showing due deference to the legitimate
domains of power of the other arms of state. Here parliament has spoken.
It has ordained minimum sentences for certain specified offences. Courts
are obliged to impose those sentences unless there are truly convincing
reasons for departing from them. Courts are not free to subvert the will of
the legislature by resort to vague, ill-defined concepts such as 'relative
youthfulness' or other equally vague and ill-founded hypotheses that
appear to fit the particular sentencing officers personal notion of fairness.
Predictable outcomes, not outcomes based on the whim of an individual
judicial officer, is foundat ional to the rule of law which lies at the heart of
our constitutional order. "
[31] The court a quo in the light of all the circumstances and especia lly the
seriousness of the offences and the manner i n which the appellant
committed the offences, found that no compelling and substant ial
circumstances, which will allow the court to impose a lesser sentence,
exists.
[32] I, therefore, cannot find that the court a quo misdirected itself in any respect
or that the sente nce imposed was disturbingly inappropriate that no
reasonab le court would have imposed it. The court a quo clearly exercised
it discret ion properly.
Order
[33] In the result, the following order is made:
(i) The appeal against conviction and sentence is dismissed;
(ii) The conviction and sentence are confirmed.
CMFOURIE
ACTING JUDGE OF THE HIGH COURT,
NORTH WEST DMSION, MAHIKENG
16
ACTING JUDGE OF THE HIGH COURT, NORTH WEST DIVISION,
MAHIKENG
····---· ··---------
APPEARANCES
DATE OF HEARING
JUDGMENT HANDED DOWN
FOR THE APPELLANT
FOR THE RESPONDENT
17
: 13 JUNE 2025
: 20 FEBRUARY 2026
: Mr T.R SEMINO
: ADV. N.S MABALE