THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 086/2023
In the matter between:
JAMES MUSA MOTSITSI APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Motsitsi v The State (086/2023) [2026] ZASCA 44 (02 April
2026)
Coram: MEYER and COPPIN JJA and VALLY AJA
Heard: 10 March 2026
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the judgment
is deemed to be 11h00 on 02 April 2026.
Summary: Criminal Law and Procedure – conviction – common purpose –
dissociation from common purpose – Criminal Law Amendment Act 105 of 1997 –
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whether the high court erred in its application of the doctrine of common purpose –
whether the high court erred in failing to find that the appellant’s conduct of sitting
in the small compartment was a clear indication that he never associated in common
purpose with other persons – whether the appellant ought to have performed any
other act to frustrate or prevent the completion of the crime – whether the late filing
of the appeal should be condoned and whether the appeal should be reinstated.
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ORDER
On appeal from: Gauteng Division of the High Court, Johannesburg (Sithole AJ,
sitting as a court of first instance):
1 The appellant’s application for condonation for the late filing of the heads of
argument is granted.
2 The appellant’s application for condonation for non -compliance with the time
periods set out in rule 7(1)( b) of the Rules Regulating the Conduct of the
Proceedings of the Supreme Court of Appeal of South Africa is dismissed.
3 The appellant’s application to reinstate the appeal is dismissed.
JUDGMENT
Vally AJA (Meyer and Coppin JJA concurring):
Introduction
[1] The appellant was a ccused 4 in a trial where he and his co -accused were
indicted for three counts of murder, 28 counts of attempted murder, 31 counts of
endangering lives as a result of an explosion which contravened s 1 of the Explosives
Act 26 of 1956, one count of unlawful possession of unauthorised explosives,
destruction and damaging of property as a result of unlawful use of unauthorised
explosives, and one count of escape from lawful custody. The doctrine of common
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purpose was invoked in the indictment. The appellant, together with his co-accused,
was found guilty on all the charges and appropriately sentenced. While he was
sentenced separately for each of the counts in the indictment, the effective sentence
he is required to serve is life imprisonment. The appellant secured leave to appeal
on a very narrow point, namely, whether it is reasonably possible that another court
would find that he had actively dissociated from the common purpose before the
crimes were committed. This was an error on the part of the trial court as leave can
only be granted against an order and not against any of the grounds upon which the
order is based.
[2] The appellant's leave to appeal has lapsed due to his failure to comply with
rule 7(1)(b) of the Rules Regulating the Conduct of the Proceedings of the Supreme
Court of Appeal of South Africa (the SCA Rules). He has failed, in particular, to
lodge a notice of appeal with the registrar and the court a quo within one month of
the date of the order granting leave to appeal. The appellant now requires this Court
to grant condonation for such non-compliance and to reinstate his appeal.
Condonation
[3] The appellant was convicted by the Gauteng division of the High Court,
Johannesburg (the high court), per Sithole AJ, on 9 October 2014 and sentenced on
20 November 2014. He secured leave to appeal to this Court on 3 December 2014.
The notice of appeal, taking into account dies non, had to be lodged on or before 2
February 2015. The appellant failed to comply. Had he done so he would have had
to file the full record of the proceedings in the high court with the registrar of this
Court by at least by 2 May 2015. This too, the appellant did not do. As a result of
the said non -compliance, the appeal lapsed . The appellant filed an application to
reinstate his appeal on 12 September 2019 . That application seems to have gone
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amiss. It was, nevertheless, four years late. He then failed to file his record within
three months. He only filed it on 9 December 2024, five years after his application
to reinstate the appeal was made. On these facts, the appellant applies to reinstate
his appeal.
[4] The appellant says that upon being granted leave to appeal on 3 December
2014, he instructed his attorney to prosecute the appeal. His attorney , he later
learned, did not do anything to prosecute the appeal. During February 2015 , he
instructed a new attorney to prosecute the appeal. The new attorney’s mandate was
placed in jeopardy, as neither he nor his family were able to procure the necessary
funds to pay for the transcription of the proceedings in the high court. When he was
ready to proceed with the appeal , his ‘attorney was informed that [his] application
for leave to appeal had lapsed and that [he had to] institute proceedings to reinstate
it’. And, without giving any further detail he says that ‘[t]his process lasted for about
three years’.
[5] His version is challenged by the State. The State did not file an opposing
affidavit to his application for condonation . However, it presented alternative facts
in its heads of argument. Since no affidavit was deposed to and the appellant was
not given an opportunity to respond thereto, they must be disregarded. Only the facts
deposed to by the appellant will be considered.
[6] There is also an application for condonation for the late filing of the heads of
argument by his legal representative, the Legal Aid Office. The explanation for the
late filing is that there was some misunderstanding within its office. Little purpose
would be served by scrutinising the explanation for the late filing in the light of the
view I take in this matter.
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[7] The application for condonation for non -compliance with rule 7(1)(b) of the
SCA rules and his application for the reinstatement of the appeal is altogether a
different matter. Here, the application stands or falls on a consideration of a number
of factors considered cumulatively. They are: ‘the extent of his non-compliance with
the provisions of the rule, his explanation for it, his prospects of success in the
appeal, the importance of the case, the respondent’s interests in the finality of the
case, the convenience of the court and the avoidance of unnecessary delay in the
administration of justice.’ 1 These considerations, though n ot exhaustive, are time-
honoured. The Constitutional Court has indicated that they can neatly be captured
under the rubric of ‘interests of justice’.2
[8] This Court has on many occasions admonished litigants, including convicted
persons, that a condonation application should be brought as soon as the litigant
realises that his appeal is out of time or that he has failed to comply with one or other
rule of this Court. It has reminded them that ‘condonation is not to be had merely for
the asking’.3
[9] The appellant’s non-compliance with the provisions of rule 7(1)(b) of the SCA
rules is particularly disconcerting. He delayed filing the notice of appeal for four
years, followed by another five years before lodging the record. While his status as
a prisoner may have restricted access to necessary resources for pursuing the appeal,
such an extended delay cannot be overlooked lightly. It materially prejudiced the
1 S v Mogorosi [2010] ZASCA 147 para 8.
2 Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC); 2000 (2) SA 837 (CC); 2000
BCLR 465 para 3; Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae )
[2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) para 20.
[2007] ZACC 24; 2008 (2) SA 472 (CC); 2008 (4) BCLR 442 (CC) para 20.
3 Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA); [2003] 4 All SA
37 (SCA); 66 SATC 265 para 6.
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State’s interest in bringing the matter to finality. Moreover, his explanation for his
non-compliance is devoid of detail, and unhelpful in understanding his plight . The
explanation, quite frankly, is woefully inadequate. As for his prospects of success in
the appeal, these, as I demonstrate below, are non-existent.
The State’s evidence against the appellant
[10] The case against the appellant was that he, his co-accused and other prisoners
were detained in the D-section of the Johannesburg Correctional Centre (the prison).
The next day, they were all transported to the Randburg Magistrate’s Court for their
appearance. During their appearance, their matter was postponed and they were all
remanded in custody and immediately detained in one of the court's holding cell s,
awaiting transfer to the prison. The appellant and his co-accused formed a group .
Mr Loyiso Gladman Maqun gu (Mr Maqungu) was detained in the same cell. A
police officer arrived at the cell and had a private conversation with one of the
appellant’s co-accused, who was arraigned as accused 5 on the same charges that are
the subject of this appeal. After the conversation, accused 5 returned to the group .
The appellant was at all times present as part of the group. A short while later , the
same police officer returned and took accused 5 out of the cell. They both returned
with the police officer holding a backpack, which he handed to accused 5. Accused 5
returned to the group . The group huddled together . Mr Maqungu moved close r to
the group to see what it was that they had received in the backpack. He saw the
appellant and his co-accused remove the contents, revealing small boxes wrapped in
a brown paper . He also saw sellotape and rods. The appellant and his co-accused
placed each box on a bench . Mr Ma qungu saw that copper wires protruded from
each of the box es. These boxes , it was later revealed, were actually commercial
explosives commonly used in the mining industry.
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[11] The appellant and his co-accused then performed a ritual ceremony intended
to provide them with protection. The ritual ceremony involved one of the co-accused
pouring a substance on each of the accused’s hands. Mr Maqungu referred to the
substance as ‘muti’ – a form of a traditional medicine sometimes utilised to protect
the user from possible future harm. The substance was then placed on the mouths of
each of the five accused. T hey all walked to the corner of the cell , chanted an
incantation and sp at out the substance. In this case the possible future harm was
anticipated to be by the detonation of the explosives. This was all part of a carefully
orchestrated, if peculiar, scheme to escape from lawful custody. Soon after, all the
prisoners from the cell, including the appellant and his co-accused, boarded the truck
that transported them back to the prison.
[12] There were 32 prisoners in the truck. The back of the truck was divided into
at least a large and two smaller compartments. Some of the appellant’s co-accused
chose to occupy the large, main compartment. Two of his co-accused squatted at the
door of the truck. They arranged the explosives by the door. Two of the co-accused
were talking loudly on cell phones to someone. They were relaying the location of
the truck as it travelled towards the prison. A stampede ensued thereafter as some of
the prisoners rushed away from the door . An explosion followed, causing a huge
hole by the door of the truck. Many of the prisoners were injured. There was blood
all over the inside of the truck. The truck continued moving. One of the co-accused
and another prisoner jumped out of the moving truck. Gunshots were fired by police
officers who were in a car that happened to be behind the truck . The truck made it
to the Johannesburg prison where they all alighted. Many prisoners, including the
appellant and Mr Maqungu, were injured and three prisoners were killed as a result
appellant and Mr Maqungu, were injured and three prisoners were killed as a result
of the explosion. All the other prisoners saw t he bodies of the deceased after they
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alighted from the truck. Witnessing the victims lying motionless with their gruesome
injuries proved traumatic for Mr Maqungu.
[13] The injured prisoners were transported to the hospital . At the hospital
Mr Maqungu met one of the appellant’s co-accused who had tried to jump out of the
moving truck. He is the same person that placed the explosive at the door of the truck
before the explosion. Mr Maqungu was subsequently imprisoned in the same cell at
Mondeor police station as the appellant and his co-accused. He was questioned about
the incident during this time, and fearing for his life, he denied all knowledge of it.
Subsequently, he decided to reveal all and to testify at the trial. He was, he said,
tormented by the sight of the injuries sustained by the prisoners who died from the
explosion, and he therefore decided that he could not remain silent.
The appellant’s defence in the high court
[14] The appellant testified in his defence. He denied all culpability. He denied
knowing any of his co-accused, except for one, and testified that he only met them
in the cell at the Mondeor police station after the explosion. He claimed that he was
only made part of the five accused because he and one of the other accused
(accused 2) were charged together in another matter . T hey were awaiting trial
prisoners when the incident occurred. He denied that any of the events referred to by
Mr Maqungu occurred . In particular, he denied that any of his co -accused had
received the explosives from a policeman while in the holding cell at Randburg
Magistrates’ Court, and that any ritual ceremony was conducted there . He denied
any knowledge of any of his co-accused talking on a cell phone while they were in
the truck, and knowledge of any of his co-accused placing explosives at the door of
the truck while it was transporting them to the prison . After the explosion, he was
unconscious. During his cross-examination he claimed that upon entering the truck
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he chose to sit in a small compartment rather than in the main compartment. In
essence, his defence was: ‘I was not part of any group with designs to commit any
of the crimes listed in the indictment, I saw nothing, I heard nothing, I know
nothing.’
The high court’s conclusion
[15] The State was not able to give precise details of ‘when, where or in what
terms’ all the accused formed the common purpose. Its case that the accused acted
with common purpose was predicated on the testimony of a single witness; that the
single witness – Mr Maqungu – was consistent, credible and candid in every material
respect; that he had no ulterior motive in testifying against any of the accused; that
the State had proven beyond reasonable doubt that the appellant had acted with
common purpose with his co -accused. Accordingly, he was guilty of the offences
listed in the indictment, as the offences were all integral to, or interconnected with,
the detonation of the explosives in the extremely confined space of the locked truck.
The effect thereof was that the occupants were unable to disembark before the
explosion occurred.
The appellant’s case in this Court
[16] The appellant continued with his claim that no common purpose between
himself and his four co -accused was proven beyond reasonable doubt. He insisted
that he was not part of the group – which according to the State, consisted of the five
accused, including himself. He reiterated his position in the high court, that he was
not involved in the crimes committed by his co-accused. It was further submitted on
his behalf that, should this Court find against him on whether the State proved that
he acted with a common purpose with his co -accused, he ought nonetheless to be
acquitted on the basis that he had actively disassociated himself from their plan and
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conduct just prior to the detonation of the explosives . His disassociation was
manifested, so it was submitted, by him entering into and sitting in a small
compartment in the truck rather than the main compartment where the explosion
occurred.
The doctrine of common purpose
[17] The doctrine of common purpose is fully entrenched in our law. 4 Common
purpose takes two forms: prior agreement amongst all the perpetrators before the
commission of the offence, or active association by each perpetrator in the conduct
of the group of perpetrators. The former may involve an express agreement or an
implied one based on what was contemplated by the group. The latter while not
derived from a prior agreement, ‘can arise on the spur of the moment and can be
inferred from the facts surrounding the active association with the furtherance of the
common design’,5 as held in S v Safatsa and Others,6 and entails participation ‘with
the requisite blameworthy state of mind’,7 as articulated in S v Thebus and Another.8
Should the State rely upon ‘active association ’ to establish common purpose, it is
required to prove beyond reasonable doubt with regard to each individual perpetrator
that he:
‘. . . [M]ust have been present at the scene where the violence was being committed . . .must have
been aware of the assault on the [victims] . . . must have intended to make common cause with
those who were actually perpetrating the assault. . . 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. . . must have had the requisite mens rea [ie, in the case of murder ] . . .
4 S v Thebus and Another 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) (Thebus); 2003 (2) SACR 319; S v
Safatsa and Others [1988] 4 All SA 239 (A D);1988 (1) SA 868 (A) (Safatsa); S v Mgedezi and Others [1989] 2 All
SA 13 (A); 1989 (1) SA 687 (A) (Mgedezi).
5 Safatsa at 898A-B.
6 Ibid.
7 Thebus para 19.
8 Ibid.
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he must have intended [the consequences of the offence] or must have foreseen the possibility of
[the person being killed] and performed his own act of association with recklessness as to whether
or not death was to ensue.’9
Did the State prove that the appellant entered into a prior agreement with his
co-accused or actively associated with them?
[18] The State relied exclusively on the evidence of Mr Maqungu. This implicated
the appellant as being part of the group that huddled together in the wai ting cell at
the Randburg Magistrate’s Court; that received the explosives from the policeman;
that engaged in placing the explosives on a table; and that partook in the ‘muti’ ritual
prior to boarding the truck. If accepted, the evidence considered as a whole clearly
implicates him in the activities of the group. On this evidence, the State had proven
beyond reasonable doubt that he, by prior agreement, had joined in the plans to
acquire explosives and to detonate them in order to escape from lawful custody.
[19] Having denied being part of the group and partaking in its activities, including
the ‘muti’ ritual, he was left with no option but to attempt to discredit the evidence
of Mr Maqungu. His attack on the testimony of Mr Maqungu was that Mr Maqungu
never claimed that only he, or only the members of the group, went to see what items
accused 5 was given by the policeman and brought into the cell. All the awaiting
trial prisoners went to investigate and thus the fact that he was one of them is of no
moment. It does not demonstrate that he associ ated with his co -accused. It was
accused 3 that arranged the explosives on the concrete bench in the cell, not himself.
Furthermore, Mr Maqungu could not discern what members of the group who had
huddled together had said, and lastly, the members of the group were not always in
each other’s company – there were times when they were separated from each other.
9 Thebus para 20. See also Mgedezi at 705I-706A.
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[20] There is no substance in his attack. Mr Maqungu did not flinch from saying
that the group was not at all times sitting in one place separate from all the other
prisoners. He testified that the only times they were together was when accused 5
received what turned out to be the explosives – and when they conferred and
conversed as a group, even though he does not have any knowledge of what the
conversation was about, and that they all partook in the ‘muti’ ritual. Mr Maqungu’s
evidence was not gainsaid. The appellant did not, and could not, attack the credibility
of Mr Maqungu. Mr Maqungu did not know any of the accused prior to meeting
them in prison. He had no negative encounters with any of them. He did not
embellish his evidence to implicate any of them . He testified candidly on what he
saw each of them do. The substance of his evidence was not damaged by cross -
examination. There are no inherent improbabilities in his evidence. A careful reading
thereof shows that its truthfulness cannot be doubted whatever minor criticisms may
be levelled against it , such as that he initially told the police that he knew nothing
about the explosives or of their detonation . He adequately explained the
inconsistency between his initial police statement and his subsequent evidence by
claiming, not unrealistically, that the former (false) one resulted from a real fear for
his life. He had a change of mind because he was tormented by the devastation he
witnessed after the explosion.
[21] The appellant further contended that, as Mr Maqungu was the sole witness
whose testimony implicated him, that evid ence should carry little weight. As his
evidence was that of a single witness , it should be treated with caution. This
contention, raised so often in the criminal courts, is misplaced. That the evidence
comes from a single witness does not , in and of itself , make it unreliable or
untruthful. His evidence was simple, limited to what he saw and encountered, free
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from embellishment and clinical in its content as well as in its presentation. The fact
that it was not contradicted by other evidence does not make it necessarily true,10 but
there is nothing before Court in this case to doubt its veracity.
Did he succeed in showing that he actively disassociated from the group?
[22] It is a settled principle, in civil proceedings, that ‘[a] litigant can plead, but
not testify, in the alternative ’.11 This is exactly what occurred here, albeit in a
criminal setting. The appellant, having been informed of Mr Maqungu’s statement
and then having to endure his testimony , was impaled on the horns of a dilemma :
either he denied any and all involvement in the activities of the group or he admits
to being involved in those activitie s up to a point where he decided to disassociate
himself from them. He simply could not have it both ways. He could not say that he
shared no common purpose with the group while, at the same time maintain that he
was a party to that common purpose, at least initially, and that he dissociated from
that common purpose at the point when he chose to sit in the small compartment .
The two statements cannot simultaneously be true. On the former version he was a
stranger to the whole enterprise, unknown to his co-accused, ignorant of their plans,
and entirely uninvolved. On the latter version (the one his disassociation defence
requires) he was an insider who knew the plan, participated in it, and later withdrew.
The two versions are irreconcilable. In fact, he chose the former version and having
chosen he must live with its consequences.
[23] During his testimony in the high court, he relied solely on the defence that he
was not involved in the decisions and conduct of his co-accused. He never once
claimed before the high court that he actively distanced himself from them by seating
10 Da Mata v Otto, N O 1972 (3) SA 858 (A) at 869B-E.
11 McDonald v Young [2011] ZASCA 31; 2012 (3) SA 1 (SCA) para 23.
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himself in the small compartment. During his testimony, he did not even attempt to
explain his decision to take a seat in the small compartment rather than the large one.
There was nothing before the high court about his state of mind when he chose to sit
in the small compartment. Simply put, he never once claimed that his seating choice
was a deliberate decision to disassociate himself from his co -accused. In short, it
was never his case during the trial that he actively disassociated from the common
purpose of the group. That contention only surfaced during his application for leave
to appeal in the high court. And having secured leave , it was pursued in this Court,
but only as an alternative to his main defence that there was no common purpose
between him and his co -accused. The case for the disassociation was founded
exclusively on his choice of seating in the truck. It is, so it was argued on his behalf,
concrete evidence of his active disassociation. However, to succeed on the defence
of active disassociation, he needed to convincingly show to this Court that his choice
of seating was not just a passive decision, but a deliberate one intended to distance
himself from the plans and conduct of his co-accused. This, as mentioned, he did not
do and could not do because of his main defence . Hence, there simply was no
evidence of active disassociation in this case.
[24] To conclude, once it was proven that he actively associated with the group
that acquired and detonated the explosives in the truck, that was the end of the matter.
His guilt for the offences resulting from the detonation was then proven beyond any
reasonable doubt. He is, therefore, guilty of the offences with which he was charged
and of which he was convicted by the high court. His appeal has no prospects of
succeeding.
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[25] Accordingly, condonation for non -compliance with the provisions of
rule 7(1)(b) of the SCA rules and his application for the reinstatement of his appeal
stands to be refused.
Order
[26] The following is ordered:
1 The appellant’s application for condonation for the late filing of the heads of
argument is granted.
2 The appellant’s application for condonation for non-compliance with the time
periods set out in rule 7(1)( b) of the Rules Regulating the Conduct of the
Proceedings of the Supreme Court of Appeal of South Africa is dismissed.
3 The appellant’s application to reinstate the appeal is dismissed.
____________________
B VALLY
ACTING JUDGE OF APPEAL
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Appearances
For appellant: M P Milubi
Instructed by: Legal Aid, Johannesburg Local Office
Legal Aid, Bloemfontein
For respondent: R Barnard
Instructed by: Director of Public Prosecutions,
Johannesburg
Director of Public Prosecutions, Bloemfontein.