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[2026] ZAGPPHC 297
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Shoveli and Others v S (A207/2023) [2026] ZAGPPHC 297 (26 March 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, PRETORIA
Case
Number: A207/2023
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
DATE
26 March 2026
SIGNATURE
In
the matter between:
BRIGHTON
SHOVELI
FIRST
APPELANT
SAMKELE
MADLALOSE
SECOND APPELLANT
ZOYISELE
THUTHUKA
THIRD APPELLANT
JOHN
NKOSI
FOURTH
APPELLANT
AND
THE
STATE
RESPONDENT
Delivered:
This judgment was prepared and authored by the Judges whose names are
reflected and is handed down electronically by
circulation to the
parties/their legal representatives by e-mail and by uploading it to
the electronic file of this matter on Caselines.
The date for
hand-down is deemed to be 26 March 2026.
JUDGMENT
Nel
AJ (LENYAI J CONCURRING)
Introduction
[1]
The appellants were convicted
on 10 November 2022 and sentenced accordingly on 21 April 2023, in
the Springs Regional Court. The
charges related to kidnapping;
robbery with aggravating circumstances, read with the relevant
provisions of the
Criminal Law Amendment Act 105 of 1997
[1]
;
Rape - contravention of
section 3
of the Criminal Law (Sexual
offences and Related Matters) Amendment Act 32 of 2007
[2]
,
read with the relevant provisions of the Criminal Procedure Act 51 of
1977 (the CPA)
[3]
,
the Criminal Law Amendment Act 105 of 1997 (Minimum Sentences Act)
and the Children’s Act 38 of 2005
[4]
;
and a charge of attempted extortion.
[2]
The appellants were all sentenced as follows:
Count
1: 3 (three) years imprisonment
Count
2: 15 (fifteen) years imprisonment
Count
3: Life imprisonment
Count
4: 1 (one) year imprisonment
[3]
The appellants were all legally represented
during the course of the trial and pleaded not guilty to all charges
preferred against
them.
[4]
The appellants have lodged an appeal against their respective
convictions and sentences. Due to
the sentence of
imprisonment for life imposed, the appellants had an automatic right
to appeal if noted, it was accordingly noted
and the reason why this
matter is now before us.
[5]
The Appellant’s grounds of appeal
against the conviction are in essence, that the court
a
quo
erred in finding that the state had
proved its case beyond a reasonable doubt; finding that the state
witnesses, more particularly
the complainant as a single witness,
gave evidence in a satisfactory manner; finding that the appellants
acted in a common purpose
and rejecting the version of the
appellants.
[6]
With regard to sentence the grounds of
appeal could be summarized that the court
a
quo
over-emphasized the seriousness of
the offence; not attaching adequate weight to the appellant’s
personal and mitigating
circumstances; finding that no substantial
and compelling circumstances existed to deviate from imposition of
the prescribed minimum
sentence and finding that the appellants acted
in common purpose.
Background
[7]
The events transpired after the complainant
in this matter boarded a taxi together with two other woman. The
complainant was then
assaulted, robbed and raped in the same taxi.
Her husband was called during the ongoing events in order to extort
money for the
release of his kidnapped wife. The Police intervened by
stopping a suspicious taxi and found the complainant half naked in a
compromising
position being held down on the floor of the taxi by a
male person. When questioned by the police some of the suspects fled
on
foot and others in the taxi which only stopped after the police
shot at the tyres of the vehicle. The presence of the four appellants
in the taxi during the course of the events as well as their
subsequent arrest is not in dispute, however their respective
actions,
conduct and intentions are.
Analysis and applicable legal
principles
[8]
The trial court bears the task of analysing
and evaluating evidence. A court of appeal is limited in its ability
to interfere with
the trial court’s conclusions, and may not do
so simply because it would have come to a different finding or
conclusion.
[9]
The
above principle was laid down in
Rex
v Dhlumayo
and
another
[5]
where the
court dealing with the appeal court's powers stated that:
"Ordinarily the appellant in a
criminal appeal has to satisfy the appellate 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...
Where there has been no misdirection
on fact by the trial Judge, the presumption is that his conclusion is
correct; the appellate
court will only reverse it where it is
convinced that it is wrong."
[10]
In
Pistorius
v S
[6]
Boshielo JA at paragraph 30 held that:
“
It
is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong.
R
v Dhlumayo & another
1948
(2) SA 677
(A) at 706;
Kebana
v S
2010 (1)
All SA 310 (SCA) para 12. It can hardly be disputed that the
magistrate had advantages which we, as an appeal
court, do not have
of having seen, observed and heard the witnesses testifying in his
presence in court. As the saying goes he
was steeped in the
atmosphere of the trial. Absent any positive finding that he was
wrong,
this
court
is
not at liberty to interfere with his finding.”
[11]
From the above, it is clear that the court
of appeal’s powers are confined, only to the extent when the
trial court has misdirected
itself in its factual findings. This is
so because the trial court has the advantage, which the appeal judges
do not have in seeing
and hearing witness being confronted and
evaluated in the atmosphere of the trial. Not only has the trial
court the opportunity
of observing the demeanour, but also their
appearances and personality.
[12]
Arguments presented on behalf of all of the
appellants aligned with the contention that the state had failed to
prove the case beyond
a reasonable doubt on the evidence of a single
uncorroborated witness; insufficient evidence presented to sustain
the conviction
on the charges and that the court
a
quo
wrongly applied the doctrine of
common purpose.
[13]
It was further argued that the court
a
quo
faulted in not accepting the
versions of the respective appellants as reasonably possibly true.
The
state’s case
[14]
The complainant’s version that she
was in the taxi together with the 4 appellants is undisputed and
accepted as part of the
appellant’s versions.
[15]
Mrs. M[...] testified that on 12-13
November 2019 she was on board the taxi with two other ladies who
were on their way to Durban,
while she was on her way to Kinross. The
second Appellant was driving the taxi. After driving for a short
while, their handbags
were demanded by the first Appellant. The other
two ladies were then dropped off. Mrs M[...] was strangled and robbed
of her handbag,
jewellery, cell phone, smart phone, R5000 cash, a
power bank, a charger and a router. These items were taken from her
by the first
Appellant and handed to the fourth Appellant.
[16]
There was also an attempt to access her
bank account at an ATM without success which led to her husband being
called to pay money
for her release, if not she would be raped and
killed.
[17]
The complainant further testified that she
was physically assaulted by the first, third and fourth appellants,
whereafter the fourth
appellant told her to undress her lower body
and lie down. The fourth Appellant then proceeded to hit her with an
iron rod he had
in his possession. The same instrument was then used
to penetrate her vaginally. The Police stopped their vehicle and the
appellants
were all arrested after they tried to escape.
[18]
Mrs. M[...] never disclosed any details of
the rape to the Police, her husband or the medical doctor who
examined her. She testified
that she was ashamed of what had happened
to her. She self-treated the vaginal injury.
[19]
Doctor
Ntshangase
,
a medical
doctor in private practice testified that he examined Mrs M[...] on
13 November 2019. Mrs M[...] presented with a history
of being
assaulted by a group of four guys while on board a taxi. She reported
that her belongings were taken, she was kicked and
beaten with a
steal pipe. She had suffered multiple injuries to her face and body.
He testified that he did not complete the gynaecological
section
because nothing in that regard was reported to him.
[20]
Mr. J[...] M[...], the husband to the complainant, testified
that he believed that after receiving the phone call that something
had happened to his wife. He realized that she was kidnapped and
testified that an amount of money was demanded by her kidnappers.
He
then involved Mr. Elvis Dludlu to assist him.
[21]
Mr. Elvis Dludllu testified that he assisted Mr. M[...] to talk to
the kidnappers and negotiate
the payment. The amount of R5 000
suggested was not enough and R10 000 was required by the
kidnappers, they also threatened
to shoot Mrs M[...] in her private
part if they did not receive the money as demanded quickly. According
to him they specifically
stated that they would not rape the
complainant, but they will shoot her. On his way to an FNB ATM,
before he could transfer the
money, he received a call from one
Constable Malinga who reported that Mrs M[...] had been found.
[22]
Sergeant Malope attached to the SAPS flying squad stopped a
suspicious taxi at 8:30 pm.
The fourth Appellant was the driver of
the taxi who acted suspiciously when he requested to search the taxi.
His investigation
of the taxi revealed a female that was half naked
on the floor of the taxi with a male person who was pressing her
down. He initially
thought that they were having sexual intercourse
but on second thought realized that perhaps they were raping the lady
because
she had raised her hand and shook it.
[23]
According to Sergeant Malope, the fourth appellant, realizing what
had been observed by
the Police, ran away into the bushes while one
of the other males ran towards the driver’s seat and drove off.
Sergeant Malope
discharged his fire-arm in order to stop the vehicle
whereafter the taxi was pursued for a distance of about 5 kilometres
before
it veered off the road because of damage to the wheels caused
by further shots fired at the vehicle. Subsequently all four
appellants
were arrested.
The
appellant’s case
[24]
The appellants’ versions is simply a denial of any form of
kidnapping, assault, rape
or extortion of money from the complainant
and her husband. Apart from admitting that the complainant was picked
up and transported
in the taxi which was later stopped by the Police,
they deny all other allegations.
[25]
The first Appellant’s, evidence was that the complainant was
picked up on route to
Delmas. She requested a re-route to the airport
for a luggage pick-up. She and the fourth appellant had discussions
in that regard
and an agreement was reached. Due to the payment made
not reflecting an argument started between them. The complainant
called her
husband, and he had a discussion with the fourth appellant
about money. Next thing there was a vehicle flickering lights behind
them. They stopped, shots were fired and the fourth appellant ran
away. The third Appellant took charge and drove the vehicle from
that
point, but further shots were fired, the tyre burst and the vehicle
veered off the road. The first and the second Appellants
then jumped
from the taxi. He denied any robbery of the complainant.
[26]
The second Appellant’s version was that he was the driver of
the taxi. Somewhere
along the road he was told to stop by the fourth
appellant which he did and the fourth appellant took over as the
driver. He confirmed
the discussion and misunderstanding about the
money payable as well as the telephonic conversation between
complainant’s
husband and the fourth appellant. Along the road
they were then stopped by the Police. After being stopped by the
Police, he and
the first appellant jumped out of the moving vehicle.
He denied witnessing or taking part in any assault or rape on the
complainant.
[27]
The third Appellant’s version was that they picked up a
hitchhiker. He also gave
a version about the arrangements to go to
the airport and discussions about payment that was made followed by a
vehicle flickering
lights at them, being stopped by the Police, shots
being fired and he taking control to drive away in the taxi. After
losing control
of the vehicle due to the tires being damaged by the
gunfire, the vehicle was forced to a halt and he left the scene and
was only
later arrested.
[28]
The fourth Appellant‘s version was that they were on their way
to his girlfriend
in Delmas. He was asleep and was woken up by the
first appellant. It was explained to him that there was a lady in the
vehicle
that needed help. After a discussion they came to an
agreement that he would assist her upon payment of R500. Payment was
to be
made into his account via transfer but it was not successful.
There were some discussions going back and forth about the payment
of
the money and he ended up talking to a male person who said that he
would request a friend to make a payment into his E-wallet.
While
this happened a vehicle came from behind and flicked his lights. They
were shortly afterwards stopped by the Police. After
he presented his
driver’s licence shots was fired, he became confused and ran
away.
Evaluation
of the evidence
[29]
The
evidence of the complainant in this matter is that of a single
witness and thus subject to the cautionary rules applicable to
single
witnesses
[7]
.
[30]
The evidence of complainants in matters of
a sexual nature is however not to be subjected to the same scrutiny
as stipulated in
the Sexual Offences and Related Matters Amendment
Act. Section 60 clearly prohibits a cautionary approach
in
criminal proceedings involving the alleged commission of a sexual
offence pending before that court
based
only on the nature of the sexual act.
[31]
However, apart from some
circumstantial evidence offered by the other witnesses called by the
state, they could not really provide
any support for her evidence on
the rape charge.
[32]
From the evidence of the complainant it is
evident that she decided not to tell anyone about the rape encounter.
The reason therefore
as explained during her testimony, was that she
was ashamed, resulting in the rape not being recorded in her
statement to the Police,
not reported to her husband and also not
reported to her doctor who performed the medical examination.
[33]
The lack of supporting medical evidence as
well as the absence of any report about the events that transpired,
leads to the conclusion
that the state was not able to prove the
charge of rape (C/s
3 Act 32
of 2007) beyond a reasonable doubt.
[34]
The
state however did succeed to prove the elements of a lesser offence
to wit assault with the intent to do grievous bodily harm
which is a
competent verdict to the preferred charge in terms of
section
261(1)(a)
of the
Criminal Procedure Act
[8
]
.
[35]
The objective medical evidence did support
the injuries on the complainant and the evidence of sergeant Malope
regarding the circumstances
under which the complainant was found.
[36]
The court
a
quo
undertook a detailed analysis of
the complainant’s evidence and reminded itself extensively of
the caution required when dealing
with the evidence of single
witnesses. The court discussed the impression the complainant made
upon it and how she maintained her
version throughout and why the
lack of the report about the rape should not taint her testimony
before the court.
[37]
The court
a quo
carefully considered the all evidence
presented in the state’s case with its inconsistencies and
found it to be clear, coherent
and satisfactory in all material
respects and proof beyond a reasonable doubt to sustain a conviction.
[38]
The regional magistrate found that the
appellants were not just a random group of friends on their way
somewhere but that they were
a cohesive group with a specific common
intent.
[39]
The trial court critically and
comprehensively examined the respective versions offered by the
appellants; the inherent probabilities
of the case were considered on
the conversation, route taken, payment agreement and calls made to
the complainant’s husband,
and rightfully rejected it as vague,
sketchy, improbable and false.
[40]
There can be no misdirection found in the
trial courts analysis, evaluation and rejection of the appellants’
version.
Common Purpose
[41]
A person is regarded to be
perpetrator to a crime although his own conduct does not comply with
that required in the definition
of the crime, if he acted together
with one or more persons and the conduct required for a conviction is
imputed to him by virtue
of the principles relating to common
purpose
[9]
.
[42]
Conduct by a member of the
group of persons having a common purpose which differs from the
conduct envisaged in the said common
purpose may not be imputed to
another member of the group unless the latter knew that such other
conduct would be committed, or
foresaw the possibility that it might
be committed and reconciled himself to that possibility
[10]
.
[43]
There
was no evidence of a prior agreement between appellants, which would
be difficult to prove because the offence was committed
after the
complainant entered the taxi. However, a finding that a person acted
together with another in a common purpose is not
dependent upon proof
of a prior conspiracy. Such a finding may be inferred from the
conduct of the participants. The State was
therefore required to
prove that the appellants had actively associated themselves with the
execution of the common purpose. The
concept of active association is
wider than that of agreement, since it is seldom possible to prove a
prior agreement. Consequently,
it is easier to draw an inference that
a participant associated himself with the perpetrator
[11]
.
[44]
The appellants were at all times present in
the taxi during the commission of the various offences. Not only did
they participate
in the furthering of the common goal by actively
participating, but also at no stage did any of them dissociate
themselves from
the criminal acts directed at the complainant. The
evidence suggest that the vehicle stopped on more than one occasion.
At no point
did any of the appellants, when the opportunity presented
itself, choose to leave the vehicle.
[45]
In
S
v Tshabalala
[12]
the
Constitutional Court held that:
“
The
object and purpose of the doctrine is to overcome an otherwise unjust
result which offends the legal convictions of the community,
by
removing the element of causation from criminal liability and
replacing it, in appropriate circumstances, with imputing the
deed
(actus reus) which caused the death (or other crime) to all the
co-perpetrators.
[13]
”
[46]
The Court
a
quo
found that the appellants had
actively associated themselves with the execution of the common
purpose. The court made a factual
finding that the appellants
were guilty of all the respective offences on the basis of common
purpose. Thus, these factual
findings must remain undisturbed,
and this Court cannot make a determination to the contrary.
Conclusion
[47]
The court
a
quo
distinctly made the finding that
aggravating circumstances were not proved beyond a reasonable doubt
and accordingly convicted
the appellants on robbery.
[48]
On the charge of rape the court already
referred to the lack of evidence to support a conviction.
[49]
It follows that the appeal on count 3
should succeed and the conviction on the count of Rape (C/s
3 Act 32
of 2007) be replaced with a conviction on the competent verdict of
assault with the intent to do grievous bodily harm in terms
of
Section 261(1)(a)
of the
Criminal Procedure Act.
>
[50]
The convictions on count 1, 2 and 4 is
confirmed.
Sentence
[51]
Sentencing falls primarily within the
discretion of the trial court and the court sitting as court of
appeal will not lightly interfere
with that discretion.
[52]
In
S
v Pieters
[14]
it
was held that interference on appeal is justified where the
sentencing court committed a material misdirection or where the
sentence imposed is disturbingly inappropriate.
[53]
On the count of robbery with aggravating
circumstances (count 2), the court
a quo
disregarded its own finding that the
conviction was only on a count of robbery and that aggravating
circumstances were not
proved. The court thus misdirected itself and
proceeded to impose sentence in terms of the
Criminal Law Amendment
Act 105 of 1997
.
[54]
It follows that the appeal regarding
sentence on count 2 must succeed and the appellants be sentenced on a
count of robbery. The
sentence imposed on count 2 is set aside and
will be replaced with a sentence on robbery.
[55]
With regard to sentence imposed on count 3,
the appellants argued that the sentence of life imprisonment was
inappropriate because
the court failed to properly consider the
appellants personal circumstances and deciding that no substantial
and compelling circumstances
existed to justify the imposition of a
lesser sentence.
[56]
The argument however falls away since the
conviction is on a lesser charge and competent verdict to the charge
of rape. It follows
that the appeal with regard to sentence on count
3 must succeed and the appellant will be sentenced on a count of
assault with
the intent to do grievous bodily harm.
[57]
All the necessary information to properly
consider sentence is on record. It would serve no purpose to send the
matter back to reconsider
sentence afresh based on the findings of
this court. This court will then summarily proceed with sentence on
counts 2 and 3.
Order:
[58]
Under the circumstances the following order is made:
1.
The appeal regarding count 1 and 4 is dismissed.
2.
The appeal regarding count 2 and 3 is upheld and the sentence is set
aside and
replaced as follows:
(a)
On count 2 – Robbery, the appellants are each sentenced to a
period
of 6 (six) years imprisonment.
(b)
On count 3 – Assault with the intent to do grievous bodily
harm,
the appellants are each sentenced to a period of 5 (five) years
imprisonment.
3.
The sentence is antedated to 21 April 2023, being the date when the
appellants were originally sentenced.
[59]
Obiter remark
:
The state conceded during argument on appeal the
obvious fact flowing from the cross-examination of the complainant,
that the charge
of rape of the complainant was not supported or
contained in any official statement under oath. The charge originated
from a report
to a witness who was not called during the course of
the extended trial. Prosecution on such serious charges simply cannot
be instituted
if not based on any supporting affidavits or statements
and must be condemned.
[60]
This judgment must be brought to the attention of the Director of
Public Prosecutions,
Gauteng Division, Pretoria.
PW NEL AJ
ACTING JUDGE OF THE HIGH COURT
PRETORIA
I concur and it is so ordered.
MMD LENYAI J
JUDGE
OF THE HIGH COURT
PRETORIA
Date
of Hearing
: 17
February 2026
Date
of Judgment
: 26
March 2026
Appearances:
For the First Appellant:
Advocate: Mrs. Van Wyk L.A
Instructed by:
Legal Aid South Africa
For the Second and Third
Appellants:
Advocate: Mr. Mathebula
Instructed by:
Mashaba Believe Attorneys Inc
For the Fourth Appellant:
Advocate: Mrs. Makoko
Instructed by:
Legal Aid South Africa
For the Respondent:
Advocate: Mr. Masekoameng
Instructed by:
The Director of Public
Prosecutions, Pretoria
[1]
The
Criminal Law Amendment Act, Act
105 of 1997.
[2]
The Criminal Law (Sexual Offences and Related matters) Amendment
Act, Act 32 of 2007.
[3]
The
Criminal Procedure Act, Act
51 of 1977
.
[4]
The
Children’s
Act, Act 38 of 2005.
[5]
Rex
v Dhlumayo
and
another
1948 (2) SA 677
(A) at 705.
[6]
Pistorius
v S
2014
(2) SACR 314
(SCA).
[7]
See: S v Sauls 1971 (3) SA 172 (A).
[8]
Criminal Procedure Act, Act
51 of 1977.
[9]
Snyman, Criminal Law, 7
th
Edition p.222
[10]
Snyman p 225.
[11]
Snyman p 229
[12]
Tshabalala
v The State; Ntuli v The State [2019] ZACC 48
[13]
Par
56
[14]
S
v Pieters
1987 (3) SA 717
(A)