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[2026] ZANCHC 74
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Motsie v S (Leave to Appeal) (K/S 18/2022) [2026] ZANCHC 74 (29 July 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
K/S 18/2022
Reportable:
YES / NO
Circulate to
Judges:
YES / NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
REUBEN
PHAKISO
MOTSIE
APPLICANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Motsie RP v The State. Case No:
K/S18/2022. Application for leave to appeal (29 July 2026)
Coram:
MAMOSEBO J
Heard:
27 May 2026
Delivered:
29 July 2026
Summary:
Leave
to appeal- Murder read with the provisions of
s 51(1)
of the
Criminal
Law Amendment Act 105 of 1997
– Intention to kill –
application considered under
s 17(1)(a)(i)
and (ii) of the
Superior
Courts Act 10 of 2013
– whether the envisaged appeal has
reasonable prospects of success – whether there is some other
compelling reason
why the appeal should be heard – compelling
reason exist- leave granted to the SCA.
ORDER
1.
Condonation for the late noting and
prosecution of the appeal is granted.
2.
The application for leave to appeal is
granted to the Supreme Court of Appeal.
JUDGMENT
MAMOSEBO
J
[1]
On 01 August 2023 this court convicted the applicant of murder read
with the provisions
of s 51(1) of the Criminal Law Amendment Act, 105
of 1997 (the CLAA) having tendered a guilty plea in terms of s 112(2)
of the
Criminal Procedure Act 51 of 1977 (the CPA). He was sentenced
to life imprisonment on 03 August 2023. He now seeks leave to appeal
to the Full Court of the Northern Cape Division against both his
conviction and sentence. The applicant sought condonation
for
the late filing of this application which the respondent did not
oppose. Condonation is granted. The respondent is also not
opposing
the leave application.
[2]
In terms of
s 17(1)(a)(i)
and (ii) of the
Superior Courts Act
[1
]
leave to appeal may only be granted if:
(a)(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration.
[2]
[3]
The grounds upon which the applicant relies in seeking leave to
appeal are that the court
erred in:
Conviction
3.1
not granting the application by the State to amend the indictment
that the murder be read with
the provisions of
s 51(2)
of the CLAA.
3.2
not granting the parties an opportunity to address the court prior to
judgment regarding the form
of intent in terms of
s 175
of the CPA.
3.3
not granting the parties an opportunity to address the court before
judgment whether the murder
was planned or premeditated pursuant to
the provisions of
s 175
of the CPA.
3.4
finding that the murder was committed with the intent form of
dolus
directus
despite the fact that the plea tendered and accepted by
the State admitted the form of intent being
dolus eventualis.
Sentence
3.5
not making a finding whether the applicant is convicted of murder
read with the provisions of
s 51(1)
or
51
(2) of the CLAA prior to the
sentencing phase.
3.6
finding that there are no substantial and compelling circumstances to
deviate from the prescribed
minimum sentence.
3.7
that the sentence imposed is disproportionate to the crime, the
criminal and the interests of
society.
[4]
In the ‘Notice of Trial’ notice was given to the accused
in terms of
s 144(4)(a)(ii)
of Act 51 of 1977
[3]
that the accused is arraigned on a charge of murder, read with
section 51(1) of Act 105 of 1997, as amended. The indictment repeated
the same.
[5]
Contained in the summary of substantial facts is the following:
1.
The accused and the deceased were living with each other at Gawie
Steyn Boerdery compound, Kanoneiland.
2.
The State will allege that late evening of 22 June 2019, the accused
started to assault the deceased and that he assaulted her with
various instruments, including a broken broom stick and/or a metal
fork and/or a metal wire object and/or a metal bar.
3.
The State will further allege that the deceased was screaming during
the prolonged assault, begging the accused to stop assaulting her.
4.
One of the neighbours, Thabang Jamba, went to their closed front door
and talked to the accused in the early morning hours of 23 June 2019.
He tried to convince the accused to stop from further assaulting
the
deceased.
5.
At sunrise on 23 June 2019, Charmaine Koper entered the accused’s
room and saw blood on the deceased’s head and all over the
room. The deceased was then lying with her back facing the door.
The
accused was not in the room.
6.
The accused entered the room from the outside and took the witness,
Charmaine Koper, by her arm and said to her that she should leave,
since the deceased was in a drunken stupor.
7.
Later that same morning, it became apparent to Thabang Jamba that
the
deceased was dead, and the relevant authorities were called.
8.
The deceased had multiple injuries all over her body, indicative of
an assault with multiple objects. Incisions were made by a sharp
object or objects. The bruises, contusions, abrasions and lacerations
were indicative of blunt force trauma.
9.
The State will allege that she was assaulted with various objects
including a cylindric object, as well as a forklike object and a
metal wire object.
10.
Her cause of death was consistent with head injuries, according to Dr
Adin Don
Surtie, who conducted the medico-legal autopsy of the
deceased.
11.
The State will further allege that the accused acted in a planned
and/or premeditated
way when he assaulted the deceased over a period
of time, during the night of 22 to 23 June 2019, using various
objects to assault
her with.’
[6]
On 31 July 2023 Adv Pillay addressed the Court to this effect before
charges were put to
the accused:
‘
Adv
Pillay
:
The State would like to make an application for the amendment of the
charge of
s 51(2) of Act 105 of 1997.
Court:
What will the State be amending?
Adv
Pillay:
The charge, in terms of s 51(2) before I put the
charge.’
[7]
Mr Fourie, for the applicant, seems to raise as one of the grounds
that before the accused
could plead, the State applied for an
amendment of the charge to read murder read with the provisions of s
51(2) instead of 51(1)
but the Court refused to grant the
application. Neither the State nor the defence proffered any
explanation why this amendment
was sought or why the provisions of s
51(2) should apply. Mr Fourie does not expatiate on this either in
his heads except to state
that the court should have allowed the
amendment when sought by the prosecutor. In
S
v Kekana
[4]
Makgoka
JA wrote:
‘…
a
cryptic, unexplained reference to s 51(2) such as the one in the
present case, is certainly not sufficient to mutate the sentencing
regime from the purview of s 51(1) to s 51(2). It must be emphasized
in this regard that even where such facts are stated, the
discretion
of the court to consider and impose an appropriate sentence remains
extant.’
[8]
What seems patently clear is that Ms Pillay does not seem to
appreciate the fact that s
51(1) and 51(2) are not part of the crime
and do not constitute a new crime. The accused was before court on a
charge of murder.
The State was not altering the crime of murder but
attempted to fetter the court’s sentencing discretion. The
salutary remarks
by Makgoka JA in
S
v Kekana
[5]
bear
repeating:
‘
As
a general proposition, where the minimum sentences provided for in
the CLAA are applicable, an accused is not entitled to pre-determine
or pre-empt his or her sentence by referring, without more, to s
51(2)
[6]
. If he or she wishes
for that sub-section to apply, and for the resultant lesser sentence
to be considered, he or she must set
out the facts from which such
conclusion can be premised. Without such facts, the court is not
restricted to a lesser sentence
merely because the accused had made
reference to s 51(2). To accept otherwise would lead to absurd
consequences.’
[9]
The accused tendered a plea of guilty in terms of s 112(2) of Act 51
of 1977, which Adv
Maroke confirmed on the record that it accords
with his instructions. Adv Pillay, for the State, accepted the plea
and confirmed
that it is in accordance with the facts at the State’s
disposal. The accused has, in actual fact, pleaded guilty to murder
in the context of an indictment which expressly invoked s 51(1) of
the CLAA. The State's attempted amendment did not alter the
factual
allegations contained in the indictment and did not detract from the
notice given to the accused that the State relied
upon s 51(1).
[10]
Below is the accused’s statement in terms of s 112(2) of the
CPA for a clearer perspective:
“
I,
the accused, Reuben Phakiso Motsie, an adult black male plead guilty
to the charge of murder.
1.
I plead guilty to the charge as set out in
the indictment freely, voluntarily and without any undue influence on
the count of murder.
In that on or about the period between 22 and 23
June 2019 and at or near Gawie Steyn Boerdery, Kanoneiland, in the
district of
ZF Mgcawu, I Reuben Phakiso Motsie unlawfully and
intentionally killed Aldine Godeverdien Titus, an adult female
person.
2.
I admit the offence was committed within
the jurisdiction of this honourable Court.
3.
I, the accused, confirm my legal
representative, Adv Maroke, explained the minimum sentence as
provided in Act 105 of 1997 to me
as amended. I confirm I am fully
aware of the minimum sentence.
4.
On 22 to 23 June 2019 that Aldine
Godeverdien Titus, (herein referred to [as] the deceased) and I
[were] in a relationship, and
we were living together at Gawie Steyn
Boerdery in one room. I was employed general worker on the farm. The
deceased was not employed
at the farm.
5.
Earlier that day the deceased and I [were]
at the tavern, and we consumed alcohol. Later that evening we went
back to our home where
we consumed alcohol with our neighbours. We
then went to our room.
6.
I had a good relationship with the deceased
prior to this unfortunate night; I had an altercation with the
deceased over money.
7.
I confronted her about her behaviour of
demanding money when I get paid whenever she is under the influence
of alcohol. It is not
her money as she [did] not work. This behaviour
infuriated me because I did not understand why she demanded the money
when there
was no money left and, without thinking straight and out
of anger, I assaulted the deceased by hitting her with various
objects,
including a broomstick, cylindrica iron rod objects, as well
as a fork like object and a metal wire object.
8.
I cannot say how many times I assaulted her
with the different objects that [were] in our room at the time. I was
stabbing and hitting
her until she was unconscious and bleeding. I
then placed her in the bed and covered her with a blanket and left
her and went to
another tavern to drink. This was in the early hours
of 23 June 2019.
9.
The deceased was not in possession of any
weapon neither was she posing any danger to me or my life during the
time I attacked her.
10.
On the morning of the 23 June 2019 one of
the neighbours found her and contacted the police and ambulance.
11.
I heard the police [were] looking for me I
then fled the scene by going to Welkom as I knew I was the last
person with the deceased
and I left her unconscious and bleeding.
12.
I was arrested in Welkom about a month
after the deceased’s death.
Admissions
13.
I admit that when I was assaulting the
deceased, I did not have any grounds [of] justification to do so and
I knew that there was
a possibility that the deceased could die from
such assault, and I recklessly proceeded with my actions. I thus
admit my intention
was in the form of
dolus
eventualis.
14.
I admit even though I consumed alcohol
prior to commissioning of the offence, I admit the alcohol I consumed
did not affect me to
such an extent that I did not know what I was
doing.
15.
I admit that when [I] acted as set out
above, I appreciated the wrongfulness of my actions and I further
admit that I was capable
of acting in accordance with that
appreciation.
16.
The body of the deceased was correctly
identified as Aldine Titus, an adult female and that the deceased’s
body did not sustain
any further injuries from the time that her body
was removed from [the] scene up until the postmortem examination
conducted by
Dr Adin Don Surtie on 26 June 2019.
17.
I admit the postmortem examination was
conducted on 26 June 2019 by Dr Adin Don Surtie, a medical officer in
forensic pathology
and employed by the Northern Cape Department of
Health, indicating the cause of death to be consistent with head
injuries as well
as the additional injuries sustained as reflected in
the additional report to the postmortem to be true and correct cause
of her
death.
18.
I admit that my actions directly caused the
death of the deceased, and I knew my actions were wrongful and
punishable. I have no
defence to the charge against me.
19.
I am remorseful for my actions.’
[11]
Mr Fourie seems to raise these further two grounds that I deal with
together. First, because
in the accused’s plea he
admitted to the form of intent as
dolus
eventualis,
which
was accepted by the State, the court erred in finding his intent to
have been
dolus
directus
without giving prior indication thereto. In my view, the court upon
considering what was placed before it did not pronounce on
the form
of intent until after consideration of all the facts. This is what
was clarified by Dambuza JA, then, in
Director
of Public Prosecutions, Gauteng Division, Pretoria v Hamisi
[7]
:
‘
It
is clear therefore that a court considering a statement made in terms
of s 112(2) exercises its discretion to determine whether
the
statement admits all the elements of the offence in question. If it
is not satisfied that that is so, it must question the
accused as set
out in s 112(1)(b) to clarify a matter raised in the written plea. If
it determines that the statement is satisfactory
and admits all the
elements of the offence, it shall convict the accused on the plea of
guilty. When the written plea detailing
the facts on which the plea
is premised is accepted by the prosecution, it constitutes the
factual matrix on the strength of which
an accused will be convicted
and the sentence imposed.
The written
plea is aimed at ensuring that the court is provided with an adequate
factual basis to make a determination on whether
the admissions made
by an accused support the plea of guilty tendered.’
(own
emphasis)
[12]
It therefore follows that the form of intent is not a fact but a
legal point to be determined by the
court after a consideration of
all the facts. The Court cannot be bound by the respondent’s
concession in this regard which
is clearly wrong. The Constitutional
Court in
Matatiele
Municipality and Others v President of the RSA and Others
[8]
made this instructive remark:
‘
Here,
we are concerned with a legal concession. It is trite that this
Court is not bound by a legal concession if it considers
the
concession to be wrong in law.’
[13]
Mr Fourie also raised the ground that the Court committed a
procedural irregularity by not affording
the State and the defence an
opportunity to address the Court on the merits as contemplated in s
175 of the CPA.
[9]
A distinction
needs to be drawn between a trial where evidence of several witnesses
was heard as opposed to where the accused pleads
guilty in terms of s
112(2) and is convicted on the basis of his plea of guilty. Section
112(2) regulates guilty pleas made in
writing by stipulating:
‘
If
an accused or his legal adviser hands a written statement by the
accused into court, in which the accused sets out the facts
which he
admits and on which he has pleaded guilty, the court may, in lieu of
questioning the accused under subsection (1)(b),
convict the accused
on the strength of such statement and sentence him as provided in the
said subsection if the court is satisfied
that the accused is guilty
of the offence to which he has pleaded guilty: Provided that the
court may in its discretion put any
question to the accused in order
to clarify any matter raised in the statement.’
It
therefore follows that the submission by Mr Fourie is misplaced.
[14]
Mr Fourie seems to have concluded that because the court sentenced
the accused to a term of life imprisonment,
despite the accused’s
112 (2) statement being silent on whether the murder was planned or
premeditated, the court should
have allowed the accused to address it
on this aspect. The judgment did not expressly refer to the murder
being planned or premeditated.
Mr Fourie’s submission in this
regard is tangential. A crucial aspect that seems to have been missed
by both the applicant
and his counsel is that the sentencing court is
not deprived of its duty to determine whether the facts admitted in
the s 112(2)
statement bring the matter within the ambit of s 51(1)
of the CLAA. The characterization adopted by the parties is not
decisive.
In any event, as highlighted by Dambuza JA, then, in
Aliko
v The State
[10]
premeditation
is not an element of the offence of murder. It is a factor in the
assessment of the sentence to be imposed.
In
casu
,
I wish to reiterate that there was no mention of premeditation in the
court’s judgment on the merits.
[15]
Lastly, what is seemingly a factor which warrants leave to be granted
to the Supreme Court of Appeal
(SCA) is that Mr Fourie attached a
copy of the Full Court judgment Tumaeletse
[11]
to this application without any explanation. Although not expressly
articulated, the attachment of the judgment appears intended
to draw
attention to the Full Court’s treatment of similar issues.
After
Tumaeletse
had pleaded guilty in terms of s 112(2) of the CPA to murder read
with s 51(2) of the CLAA I convicted and sentenced him to life
imprisonment. He noted an appeal which served before the Full Court
of this Division. The Full Court in
Tumaeletse
analysed
the facts in that case against the backdrop of
Kekana
1
[12]
and
Kekana
2
[13]
and held:
[14]
‘
In
both
Kekana 1 and
Kekana 2
there is a qualitative
difference
in
the
respective section 112(2) statements that clearly support a finding
of premeditation on the respective facts of those cases.
That is not
the case in the present appeal. The reasoning of the court a quo,
substantively summarised above is not supported by
a proper reading
of the section 112(2) plea explanation, the relevant portion is
quoted above verbatim.’
In
casu,
the
applicant pleaded guilty to s 51(1) as the Court did not grant the
amendment sought. The accused was convicted of murder read
with the
provisions of s 51(1). Although I remain of the view that the
admitted facts justified the finding of dolus directus,
the question
whether a court may, following a plea under s 112(2), depart from an
accused's expressed characterisation of his intention
as dolus
eventualis and substitute dolus directus constitutes a compelling
reason for consideration by the Supreme Court of Appeal.
[16]
Having carefully and dispassionately considered the application for
leave to appeal in order to determine
whether there are reasonable
prospects that another court would come to a different finding than
this court had reached or whether
there is some compelling reason why
the appeal should be heard, I find that the different approaches with
regards to the implementation
of s 51(1) and 51(2) particularly where
the considered sentencing option is life imprisonment warrants the
attention of the Supreme
Court of Appeal. The fact that the applicant
admitted his form of intention to have been
dolus
eventualis
but
the Court found it to have been
dolus
directus
relying
on Snyman’s
[15]
definition of
dolus
directus
as
comprising in a person ‘directing his will towards achieving
the prohibited results or towards performing the prohibited
act’.
I find this to be a compelling reason for this court to grant leave
to the Supreme Court of Appeal.
Although
I remain of the view that the admitted facts justified the finding of
dolus directus, the question whether a court may,
following a plea
under s 112(2), depart from an accused's expressed characterisation
of his intention as dolus eventualis and substitute
dolus directus
constitutes a compelling reason for consideration by the Supreme
Court of Appeal.
[17]
In the result, the following order is made:
1.
Condonation for the late noting and
prosecution of the appeal is granted.
2.
The application for leave to appeal is
granted to the Supreme Court of Appeal.
MAMOSEBO J
JUDGE OF THE HIGH
COURT
NORTHERN CAPE DIVISION
For the applicant:
Mr P Fourie
Instructed by:
Legal Aid South Africa
For the Respondent:
Adv L Pillay
Instructed by:
Office of the Director
Public Prosecutions
[1]
10
of 2013
[2]
See Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd
2020 (5) SA
35
(SCA) para 2; Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC)
para 6; S v Notshokovu 2016 JDR 1647 (SCA) para 2; S v Smith2012
(1)
SACR 567 (SCA) para 7; Ramakatsa and Others v African National
Congress and Another (724/2019)
[2021] ZASCA 31
(31 March 2021) para
10
[3]
144
Charge in superior court to be laid in an indictment
(4)(a) An indictment,
together with a notice of trial referred to in the rules of court,
shall unless an accused agrees to a shorter
period, be served on an
accused at least ten days (Sundays and public holidays excluded)
before the date
[4]
Ibid
para 27
[5]
2019
(1) SACR 1
(SCA) para 19
[6]
Except in the limited circumstances permitted by law, for example,
when entering into a plea bargain in terms of s 105A of the
CPA.
[7]
2018
(2) SACR 230
(SCA) para 8
[8]
2006
(5) SA 47
(CC) para 67
[9]
175
Prosecution
and defence may address court at conclusion of evidence
(1)
After all the evidence has been adduced, the prosecutor may address
the court, and thereafter the accused
may address the court.
(2)
The prosecutor may reply on any matter of law raised by the accused
in his address, and may, with leave
of the court, reply on any
matter of fact raised by the accused in his address.
[10]
Aliko v The State (552/2018)
[2019] ZASCA 31
(28 March 2019)
[11]
Thataone
Tumaeletse v The State (K/S 08/2019) unreported judgment of the Full
Court of the Northern Cape Division delivered on
23 March 2023
[12]
S
v Kekana 2019 (1) SACR 1 (SCA)
[13]
Kekana
v S (629/13)
[2014] ZASCA 158
(1 October 2014)
[14]
Para 23 of the Full Court judgment
[15]
SV Hoctor Snyman’s Criminal Law 7ed (2020) at 160