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[2026] ZANCHC 60
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Metswe v S (CA&R 50/2025) [2026] ZANCHC 60 (3 July 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE NO:
CA&R
50/2025
Reportable: YES /
NO
Circulate to
Judges: YES /
NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
Edited:
YES / NO
In
the matter between:
TUMISANG
DIOKA
METSWE
Appellant
and
THE
STATE
Respondent
Neutral
Citation:
Metswe TD v The State
[CA&R50/2025]
Heard
on:
01 June 2026
Delivered
on:
03 July
2026
Coram
:
Tlaletsi JP
et
Olivier AJ
ORDER
In
the result, the following order is made:
The appeal of the
Appellant against his conviction on a charge of murder, read with the
provisions of Section 51(1) of the Criminal
Law Amendment Act, Act
105 of 1997 as well as his sentence of life imprisonment is
dismissed.
JUDGMENT
OLIVIER
AJ
1.
The Appellant appeared in the Regional
Court, Kuruman on a charge of the murder of Malebogo Mavis Modisa
(“
the deceased
”),
read with the provisions of Section 51(1) of the
Criminal
Law Amendment Act
, Act 105 of 1997
(“
the CLAA
”)
and was subsequently convicted and sentenced to life imprisonment on
22 October 2024.
2.
The Appellant comes before us by way of
automatic appeal against his conviction on a charge of murder and
against his sentence of
life imprisonment.
3.
In the notice of appeal and with reference
to the conviction, it is alleged on behalf of the Appellant:
3.1
That the State failed to present sufficient evidence to the effect
that the
Appellant had killed the deceased;
3.2
That the second witness for the State who testified as a single
eyewitness,
was not a credible witness;
3.3
That none of the other witnesses for the State witnessed the incident
and that
their testimony cannot be said to corroborate the evidence
in support of the charge of murder;
3.4
That the evidence presented by the Appellant is reasonably possibly
true; and
3.5
That the State had failed to prove the guilt of the Appellant beyond
reasonable
doubt.
4.
The sentence of life imprisonment, so it is
contended, is inappropriately severe based thereon:
4.1
That a reasonable possibility exists that another Court, on appeal,
may find
that there are substantial and compelling circumstances
present which would justify a deviation from the prescribed minimum
sentence
of life imprisonment;
4.2
That the Court
a quo
erred in not finding such circumstances;
and
4.3
That the Court
a quo
erred in overemphasising:
4.3.1
The seriousness of the offence;
4.3.2
The interests of society;
4.3.3
The deterrent purpose of sentencing; and
4.3.4
The retributive purpose of sentencing.
5.
Mr. Biyela, who appeared for the Appellant,
raised a point
in limine
in his heads of argument to the effect that the Court
a
quo
erred in not adhering to the
provisions of Section 93ter of the
Magistrate’s
Courts Act
, Act 32 of 1944 (“
the
MCA
”).
6.
It is alleged that the Regional Court
Magistrate (“
the Magistrate
”)
acted irregularly in failing to appoint two assessors to assist in
the trial of the matter, that this failure by the Magistrate
constitutes an irregularity which vitiates the entire trial and that
the conviction and sentence should be set aside on this ground
alone.
THE
POINT
IN LIMINE
:
7.
Section 93ter of the MCA, after its
amendment which came into effect on 3 April 2024, states as follows:
“
(1)
The judicial officer presiding at any
trial may,
if he deems it expedient for the
administration of justice—
(a)
before any evidence has been led; or
(b)
in considering a community-based punishment in respect of any person
who has been
convicted of any offence,
summon to his or her
assistance any one or two persons who, in his or her opinion, may be
of assistance at the trial of the case
or in the determination of a
proper sentence, as the case may be, to sit with him or her as
assessor or assessors.
”
8.
It is trite that prior to its amendment, Section
93ter read as
follows:
“
(1)
The judicial officer presiding at any trial may, if he deems it
expedient for the administration
of justice—
(a)
before any evidence has been led; or
(b)
in considering a community-based punishment in respect of any person
who has been
convicted of any offence,
summon to his
assistance any one or two persons who, in his opinion, may be of
assistance at the trial of the case or in the determination
of a
proper sentence, as the case may be, to sit with him as assessor or
assessors:
Provided that if an accused is standing trial in
any regional Court on a charge of murder
, whether together
with other charges or accused or not,
the judicial officer
shall at that trial be assisted by two assessors unless such an
accused requests that the trial be proceeded
with without assessors
whereupon the judicial officer may in his discretion summon one or
two assessors to assist him
.
” (My underlining)
9.
The difference between Section 93ter pre-amendment
and post-amendment
is clear to see namely that pre-amendment, Section 93ter contained a
proviso
which applied in instances where an accused stood
trial in a Regional Court on a charge of murder and which made it
compulsory
for a judicial officer to be assisted by two assessors,
unless the accused person requested otherwise.
10.
Section 93ter post-amendment does not contain the above pre-amendment
proviso
with the resultant effect that, even in murder trials,
the appointment of assessors is no longer compulsory and, if regards
are
to be had to the wording of the section post-amendment, in the
sole discretion of the judicial officer.
11.
Mr. Biyela relied primarily on the pre-amended version of
Section 93ter
of the MCA and argued that, in view of the fact
that the Court
a quo
proceeded with the criminal trial in the
absence of two assessors, the Court was not constituted properly and
that the conviction
and sentence stand to be set aside on this ground
alone.
12.
The problem
facing the Appellant though, apart from the amendment to Section
93ter of the MCA, is the fact that all of the authorities
that we
were referred to by Mr. Biyela in support of his above argument,
stems from the period before the amendment to Section
93ter became
effective and are consequently of not much use to the Applicant’s
case.
[1]
We were not referred to
any authorities that specifically dealt with the application of
Section 93ter post-amendment, but given
what is stated herein below,
it is of no consequence.
13.
Mr. Biyela further argued that, even if his primary argument proves
to be unsuccessful, the Magistrate acted irregularly by prompting the
Appellant into waving his right to have two assessors present
during
the trial.
In support of his
argument in this regard, Mr. Biyela relied on the following exchange
that took place between the Magistrate, the
Appellant and the legal
representative of the Appellant at the time:
“
COURT
:
I see the issue of the assessors here. You said you want
assessors and it looks like you don’t have it. Ms Ntuli,
can you confirm that? Some of the assessors have now resigned
and
it’s going to take a whole year to get others like we struggled
in the past. Cases just don’t move.
MS NTULI
:
Court pleases, Your Worship.
COURT
:
Can you check who’s that.
MS NTULI
:
May I approach him? I [indistinct] consultation, Your Worship.
The accused
says his withdrawing that he needs assessors to assist in
this matter, Your Worship.
COURT
:
Can we confirm then from Mr Metswe that he now no
longer will need
assessors.
ACCUSED
:
Correct so, Your Worship.
”
14.
Mr. Biyela implored us to consider the context of the above exchange
and argued that the only inference that may be drawn from same is
that the Appellant was unduly influenced by the Magistrate to
waive
his right to assessors.
15.
I hold the view that what appears clearly from the above exchange
is
the following:
15.1
That the Appellant apparently knew before the date of the above
discussion that he had the right
to request the appointment of
assessors to assist during his trial;
15.2
That he did in fact exercise this right on an earlier date by
requesting such an appointment;
15.3
That he was legally represented at the time of the above quoted
discussion;
15.4
That his legal representative requested an opportunity to consult
with the Appellant prior to
making a final decision in respect of the
possible appointment of assessors; and
15.5
That he made the decision to waive his right to have such assessors
appointed after consulting
with his legal representative on the
issue.
16.
Mrs. Van Heerden, who appeared for the Respondent, argued that the
Appellant was afforded sufficient opportunity to make an informed
decision regarding the appointment of assessors and that his
eventual
decision does not raise any question marks.
17.
When pressed, Mrs. Van Heerden acknowledged that the way in which
the
Magistrate dealt with the issue of the possible appointment of
assessors at the time, might raise some eyebrows, but she argued
that
this certainly did not render the Appellant’s decision to waive
his right to the appointment of assessors irregular.
I agree with Mrs. Van
Heerden in this regard, especially in view of what I have pointed out
in paragraphs 15.1 to 15.5 above.
18.
I am of the view that, although the way in which the Magistrate dealt
with the issue might be described as inelegant, I find nothing
irregular in the way in which the events panned out and I
consequently
find no basis to uphold the point
in limine
raised on behalf of the Appellant and the point
in limine
therefore stands to be dismissed.
Considering how the trial
proceeded, I am unable to find that the Appellant was prejudiced or
that the questioning by the Magistrate
caused him an injustice.
THE
APPEAL
:
Ad
Conviction
:
19.
It
is an established and long-standing principle that a Court of Appeal
is reluctant to upset the findings of a trial Court
in
the absence of material misdirection of the said trial Court and that
sans
such material misdirection, the findings of fact of the trial Court
are presumed to be correct.
[2]
20.
In the present matter, the Appellant’s
primary concern is with the fact that the State relied primarily on
the evidence of
a single eyewitness and that the evidence tendered by
such witness during the trial, was not sufficient to warrant a
conviction.
21.
The single eyewitness utilised by the State
during the trial proceedings in the Court
a
quo
, one Olebogeng Macwiri (“
Macwiri
”)
testified that on the fateful night he met up with the Appellant and
the Appellant’s girlfriend (the deceased) at
a tavern and that
at one stage during the evening he (the witness) excused himself in
order to relieve himself.
The
witness testified that on his way back to the tavern, he had a chance
meeting with the deceased on the outside of the tavern,
upon which
the Appellant appeared and started assaulting the deceased by,
inter
alia
grabbing her by her neck and by
pushing her up against a fence.
22.
Macwiri further testified that he
confronted the Appellant but that the Appellant then punched him in
the face whereupon he decided
to leave with his own girlfriend.
Macwiri
finally testified that he was approached at a later stage by the
Appellant with a request to alter his evidence which he
declined to
do.
23.
The evidence of the Appellant on the other
hand was simply that he did not kill the deceased, but that the
deceased was killed by
Macwiri.
The
Appellant based his above contention thereon that he found the
deceased lying on the ground with Macwiri standing nearby, although
he also stated that Macwiri was standing on the other side of a
fence.
24.
The legal position in respect of single
witnesses and how such evidence should be treated is well-established
and does not need
a lot of discussion.
Suffice
it to say that the conviction of an accused person on the evidence of
a single competent witness is specifically sanctioned
in terms of
Section 208 of the
Criminal
Procedure Act
[3]
(“
the
CPA
”).
The
Courts have held on numerous occasions that such evidence should be
treated with caution but also that the exercise of caution
should not
be allowed to displace the exercise of common sense.
[4]
25.
In
deciding whether the evidence of a single witness is trustworthy, the
merits and demerits of such evidence should be weighed
and such
evidence may be found to be acceptable even though it might have some
shortcomings.
[5]
26.
Although
corroborative evidence is not necessarily decisive or pivotal, it
certainly does assist in deciding whether the evidence
of a single
witness is to be accepted and it has even been held that
corroboration may be found in the improbabilities of the version
of
the accused person.
[6]
27.
Upon perusing the record of the proceedings
in the Court
a quo
,
I find corroboration for the evidence of Macwiri in the following:
25.1
The evidence of the first witness for the State, Constable
Moraukgomo,
[7]
who testified
that the Appellant phoned him on the night in question and informed
him that he had assaulted his girlfriend (the
deceased) and that the
witness should call the police and the ambulance as she is
unresponsive;
25.2
The evidence of one Onalenna Thukwi who testified:
25.2.1
That she was alerted by her friends about a lady lying in the yard
and that upon
inspection she found the deceased lying on the ground
with blood coming from her mouth and nose;
25.2.2
That she saw the Appellant and the deceased together earlier during
the day; and
25.2.3
That, upon finding the deceased lying on the ground and upon
informing the Appellant
that she was going to phone the police, she
was told by the Appellant that she should proceed to call the police
because he found
the deceased sleeping with a man;
25.3
The evidence of Keinetse Kelopetswe, who testified that she is a
distant relative of the
Appellant, that she found the deceased lying
on the ground and that the Appellant confirmed to her, on the scene,
that he killed
the deceased; and
25.4
The affidavit deposed to by Dr. Kanaomang in terms of
Section 212(4)(a) of the CPA
who confirms that the deceased died
as a result of the complications of a traumatic brain injury that was
caused by manual strangulation
causing a lack of oxygen to the brain,
which is in line with Macwiri’s evidence that the Appellant
grabbed the deceased by
the neck.
The above evidence
corroborates the version of the single eyewitness (Macwiri) and in my
view lends credibility to it.
26.
In contrast I find the version of the Appellant, namely that Macwiri
killed
the deceased, highly improbable seeing that he, on his own
version, only found Macwiri standing next to the deceased although on
the other side of a fence and seeing that he never implicated Macwiri
on the scene but only afterwards and after he had some time
to
overthink the situation.
I further find the
evidence tendered by the Appellant as to why he himself did not call
for the ambulance and why he did not take
the deceased to hospital
but instead took her home, unsatisfactory and evasive.
27.
It
appears from the record of the proceedings that all of the above was
considered by the Magistrate before convicting the Appellant
and I
have to agree with the Magistrate that, given all of the evidence
tendered, the probabilities favour the State especially
in view of
the fact that the State has to prove its case beyond reasonable doubt
and not beyond all doubt.
[8]
28.
I could find no material misdirection from
the Court
a quo
with regards the eventual conviction of the Appellant and the appeal
in respect of the conviction must therefore fail.
Ad
Sentence
:
29.
The
question as to whether the sentence imposed by the Court
a
quo
is appropriate should be considered against the statement made by
Holmes JA in
S
v Rabie
[9]
where
he held as follows with reference to the jurisdiction of Courts of
appeal in matters of sentence
[10]
:
“
This
Court does not have an overriding discretion to ameliorate the
sentences of trial Courts. The discretion is pre-eminently
theirs…
”
30.
The
above principle has been reaffirmed and the Courts have consistently
held that a Court of appeal should only interfere if the
afore-said
discretion has not been judicially and properly exercised and if the
sentence is vitiated by irregularity or misdirection
or is
disturbingly inappropriate.
[11]
31.
In
the end, if the judicial officer in the Court
a
quo
exercised
his/her discretion properly, it is of little concern whether the
Court of appeal agrees with the sentence or not and the
question to
ask is not whether the sentence that is considered by the Appeal
Court would have been
an
appropriate sentence but rather whether it is
the
appropriate sentence and whether that of the trial Court is not.
[12]
32.
It is common cause that the provisions of
Section 51(1) of the CLAA find application in the present matter and
that the minimum
sentence of life imprisonment is in play.
The said Section 51(1)
reads as follows:
“
Notwithstanding
any other law… 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.
”
(My omissions)
33.
It
is also trite that
the
proper starting point in determining the appropriate sentence in
criminal matters is the so-called triad as set out in
S
v Zinn
[13]
namely to consider the circumstances relevant to the particular
crime, the circumstances of the criminal involved and the interests
of society and to then consider whether substantial and compelling
circumstances exist that would warrant a deviation from the
minimum
sentence of life imprisonment.
34.
In his heads
of argument on behalf of the Appellant, Mr. Biyela alleged that the
trial Court misdirected itself by imposing a sentence
of life
imprisonment and not considering the personal circumstances of the
Appellant which are as follows:
33.1
That the Appellant is 34 years of age;
33.2
That the Appellant is not married, but that he was in a long-term
relationship with the deceased;
33.3
That the Appellant has a three-year-old child with the deceased and a
four-year-old child with
another woman;
33.4
That the Appellant only finished grade 10 at school;
33.5
That the Appellant was employed as a general farm worker earning
R4 500,00 per month; and
33.6
That the Appellant has five previous convictions.
35.
Mr. Biyela
further alleged in his heads of argument that the trial Court erred
in over-emphasising the seriousness and prevalence
of the offence and
by overlooking the fact that the above circumstances are compelling
and warrants a deviation from the prescribed
minimum sentence.
During
argument, Mr. Biyela merely confirmed the above contents of his heads
of argument.
36.
If proper
regards are to be had to the reasons given for sentence by the
Magistrate, it appears clearly that all of the above personal
circumstances of the Appellant were in fact considered by the
Magistrate and the above argument that the trial Court misdirected
itself by not taking these circumstances into consideration cannot be
sustained.
37.
The only
question to be answered is whether substantial and compelling
circumstances does in fact exist that would warrant a deviation
from
the minimum sentence of life imprisonment and whether the Magistrate
misdirected himself in this regard.
38.
It
is perhaps apposite at this time to mention
Vilakazi
v S
[14]
where the Supreme Court of Appeal stated that in instances of crimes
of a serious nature, the personal circumstances of an offender
will
recede into the background.
The
Court held as follows:
“
Once
it becomes clear that the crime is deserving of a substantial term 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
the period
should be
.”
[15]
39.
One cannot, in
my view, deny the seriousness of the offence of which the Appellant
was convicted especially if it is to be considered
that it was
committed against someone with whom the Appellant had an intimate
relationship and whom relied on the Appellant for
protection.
40.
The
seriousness of the offence is aggravated by the fact that it was
committed by a man against a woman and if I may, I would like
to
quote
my brother Tlaletsi JP where he held as follows in
Smous
v S
[16]
:
“
Violence
in our society, particularly by men against women is prevalent.
The interests of society dictate that a strong message
to the public
that violence will not be tolerated should be sent… Respect
for the law must be guaranteed.
”
(My omissions)
41.
In
S
v WV
[17]
the Court emphasised the fact that the kind of sentence imposed will
cause society to either have confidence in the judicial system
or
lose confidence in it.
It
is important for the public to have confidence in the judicial system
and in the sentences imposed by the Courts.
42.
In
the often-quoted Supreme Court of Appeal case of
S
v Malgas
[18]
it was held at paragraph 25 that a Court may impose a lesser sentence
if the Court, upon due consideration of the particular circumstances
of the case, is satisfied that the prescribed minimum sentence is
rendered unjust in that it would be disproportionate to the crime,
the criminal and the needs of society so much so that an injustice
would be done by imposing the prescribed sentence.
The
same Court however held earlier that the prescribed sentences should
not be departed from lightly and for flimsy reasons.
[19]
43.
The
sentencing process is perhaps most aptly summarized in
S
v RO and Another
[20]
where the Supreme Court of Appeal held as follows at paragraph 30:
“
Sentencing is
about achieving the right balance (or, in more high-flowing terms,
proportionality). The elements at play are
the crime, the
offender and the interests of society, with different nuance,
prevention, reformation and deterrence. Invariably
there are
overlaps that render the process unscientific, even a proper exercise
of the judicial function allows reasonable people
to arrive at
different conclusions.
”
44.
It
should be reiterated that after all is said and done, it remains the
duty of the Court to impose a sentence that is fair and
just and that
in order to do so, the Court should consider “…
all
relevant factors and to find the appropriate balance between often
competing factors that would lead to a fair and just sentence
in all
the circumstances of a particular case
.”
[21]
45.
I could find nothing in the record of the
proceedings in the Court
a quo
to
suggest that the Magistrate did not consider all relevant factors
before imposing the sentence appealed against and I can also
not find
anything compelling or substantial in the personal circumstances of
the Appellant that would warrant a deviation from
the minimum
sentence of life imprisonment.
46.
For these reasons the appeal in as far as
the sentence is concerned, should also fail.
ORDER
:
47.
On the above premises, I make the following order:
THE APPEAL OF THE
APPELLANT AGAINST HIS CONVICTION ON A CHARGE OF MURDER, READ WITH THE
PROVISIONS OF SECTION 51(1) OF THE CRIMINAL
LAW AMENDMENT ACT,
ACT 105 OF 1997, AS WELL AS HIS SENTENCE OF LIFE IMPRISONMENT IS
DISMISSED.
A.D. OLIVIER
ACTING JUDGE
NORTHERN CAPE DIVISION
I concur.
P. TLALETSI
JUDGE PRESIDENT
NORTHERN CAPE DIVISION
For
the Appellant:
MR K BIYELA
On
instructions of:
Legal Aid South Africa
Kimberley
For
the Respondent:
ADV A VAN HEERDEN
On
instructions of:
Office of the Director of Public Prosecutions
Kimberley
[1]
We
were referred to
S
v Gayiya
2016 (2) SACR 165
(SCA);
S
v Khambule
1999 (2) SACR 365
(O);
Chala
and Others v Director of Public Prosecutions, Kwazulu-Natal
and Another
2015 (2) SACR 283
(KZP) and
S
v Du Plessis
2012 (2) SACR 247
(GSJ).
[2]
Rex
v Dhlumayo and Another
1948
(2) SA 677
(A) at 689 and 690;
S
v
Hadebe
and Others
1997
(2) SACR 641
(SCA) at 645.
[3]
Act
51 of 1977.
[4]
S
v Artman and Another
[1968]
3 All SA 408
(A) at 410.
[5]
S
v Webber
[1971]
3 All SA 609
(A) at 613;
S
v Sauls
1981
(3) SA 172
(A) at 180;
S
v Chabalala
2003
(1) SACR 134
(SCA) at 139 to 140.
[6]
S
v Mahlangu and Another
2011
(2) SACR 164
(SCA) at 171;
Chabalala
,
supra
.
[7]
It
appears from the record that he is the brother-in-law of the
accused.
[8]
S
v Ntsele
1998
(2) SACR 178
(SCA) at 182.
[9]
1975
(4) SA 855 (A).
[10]
Rabie
,
supra at 865.
[11]
S v
Pieters
1987 (3) SA 717
(A) at 727;
S
v Shapiro
1994
(1) SACR 112
(A) at 119 to 120.
[12]
S
v Sadler
2000
(1) SACR 331
(SCA), par 10.
[13]
1969
(2) SA 537 (A).
[14]
[2008]
4 All SA 396 (SCA).
[15]
Vilakazi
,
supra, par 58.
[16]
[2017]
ZANCHC 56
(15 September 2017), par 23.
[17]
2013
(1) SACR 204 (GP).
[18]
2001
(1) SACR 469 (SCA).
[19]
Malgas
,
supra,
par 9.
[20]
2010
(2) SACR 248 (SCA).
[21]
S
v Pitso
[2025] ZANCHC 61(1August 2025)
, par 33.