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[2026] ZAGPPHC 863
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Mavimbela v S (A72/2025) [2026] ZAGPPHC 863 (30 July 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: A72/2025
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: NO
DATE
30 JULY 2026
SIGNATURE
In
the matter between:
THABANG
WELCOME MAVIMBELA
And
THE
STATE
Appellant
Respondent
Coram
:
MNGQIBISA-THUSI
J AND KEKANA AJ
Heard
on
:
26 MAY 2026
Delivered:
This judgment was prepared and
authored by the Judge whose name is reflected and is electronically
circulated 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
30
July 2026.
JUDGMENT
KEKANA
AJ (MNGQIBISA-THUSI J CONCURRING)
Introduction
and background
[1]
The Appellant was convicted in the Benoni Regional Court of two
counts:
i) count 1 of murder in
terms of the provisions of Section 51 (1) of The Criminal Law
Amendment Act 105 of 1997 (the CPA);
ii) count 2, escaping
from lawful custody.
[2]
The Appellant pleaded guilty to count 2 under section 112 of the CPA
and was immediately
found guilty. The
Appellant was found
guilty of count 2 on 19 August 2024, and sentenced to life
imprisonment in respect of count 1 on 26 August
2024, and two years’
imprisonment in respect of count 2. It was ordered that both
sentences shall run concurrently in terms
of section 280 of the CPA.
[3]
The appeal before us by the Appellant is in respect of the conviction
and sentence
on count 1, that of murder.
Submissions by
parties
[4]
The Appellant argues that:
4.1
the state did not present any
evidence from which to infer that there was a prior agreement between
the Appellant and the other
two perpetrators to kill the deceased.
4.2
the evidence of the single witness
does not prove that the Appellant had shared a common purpose
consciously with any of the other
two perpetrators to kill the
deceased, or that he had foreseen the possibility that the deceased
might be killed, and reconciled
himself with such a possibility;
4.3
the trial court erred in convicting
the Appellant on common purpose. Common purpose only came as an
afterthought.
4.4
the trial court erred in not
finding substantial and compelling circumstances. The Appellant was a
first offender. He was arrested
on 19 November 2019, and was held in
custody awaiting the finalisation of the trial on 26 August 2024
[5]
Respondent submits that:
5.1 the trial court dealt
extensively with section 208 of the CPA, as well as the cautionary
rules applicable to the evidence of
a single witness;
5.2 the trial court
believed the witness who testified, and found that the version of the
Appellant makes no sense and is
not reasonably possibly true;
5.3 authority as
regards the doctrine of common purpose, is that when a Court deals
with the position where there is no evidence
of common purpose, or
evidence of a prior agreement, an Accused who was not proved to have
contributed causally to
the killing or wounding of a victim, can be liable for the events,
if:
i)
he was present on the scene;
ii)
was aware of the assault
against the victims;
iii)
he must have intended to make common purpose with those
committing the assault;
iv)
he must perform some act of association with the conduct of the
others;
v)
he must have intended or have foreseen that death might occur
and still performed his
own act of association with recklessness
as to
whether death was to ensue.
Condonation
[6]
The Respondent seeks condonation for the late filing of its heads of
argument. The
Respondent submits that there were missing appeal
records at the filing date; consequently, an application for a
postponement was
launched. The Respondent further argues that the
delay in the filing of the heads of argument was not a result of
fault on its
side but rather the incomplete records. This Court is
satisfied with the satisfactory explanation provided, and for that
reason,
condonation is granted.
The Evidence
[7]
On 12 November 2021, the deceased was in the company of his friend,
Mr Savelo Jiyane.
Mr Jiyane went to buy airtime in the shop, and as
he went out, he found amongst others, the deceased, the Appellant and
someone
by the name of “Karas” also called
“Makaras”, arguing. It was not clear to him what
triggered the
argument. According to Jiyane, the Appellant, Karas and
Upelo took out knives and started stabbing the deceased.
[8]
Mr Jiyane went on to testify that the Appellant was the first person
to stab the deceased.
The deceased tried to run away but fell, and
the Appellant, Uphelo and Karas continued to stab the deceased. He
went to fetch his
vehicle to take the deceased for medical attention.
Upon arrival at the medical facility, the deceased was declared dead.
[9]
The Appellant denied stabbing the deceased. He testified that he was
coming from a
bottle store when he saw that Karas was bleeding from a
wound on his head. He noticed that the deceased and Karas were
fighting
with each other. The Appellant testified that he was arguing
with Kagiso while Karas was fighting with the deceased.
[10]
From the facts, Kagiso held Karas, preventing Karas from stabbing the
deceased. The Appellant
then held Kagiso and Karas, and the two
argued. While the two were arguing, Karas continued to stab the
deceased.
Ad
Conviction
[11]
The issue before this Court is whether the trial court erred in its
reliance on the evidence
of a single witness. While I agree with the
Appellant that evidence of a single witness must be approached with
caution, weighed
against factors which militate against his or her
credibility.” It should be noted that in terms of section 208
of the CPA:
“
An accused may
be convicted of any offence on the single evidence of any competent
witness
.”
[12]
The Appellant does not allege any contradiction in the testimony of
Mr Jiyane as a single witness.
I find the overall testimony of Mr
Jiyane to be consistent; he did not demonstrate any bias towards the
Appellant, and in my view,
credible and reliable.
[13]
As regards the version by the Appellant, the trial
court was correct in its findings in that it is could
not be
reasonably possibly true. The Appellant was not able to answer
why he didn’t take Karas for medical treatment,
if he was
stabbed as he alleged, and just decided to leave him on the street.
In addition, it cannot be correct that the
Appellant was separating
the deceased and Karas by holding Kagiso, who was not fighting and
who was not having a knife with him.
The Appellant chose to leave the
violent person with a knife to continue stabbing the deceased; it is
not true that this conduct
by the Appellant can be reconciled with
that of the person who was trying to separate, as alleged.
[14]
As regards conviction, the Appellant’s main ground of appeal is
that the trial court did
not find the Appellant guilty on common
purpose, and that the trial court failed to deal with common purpose
in the judgment. The
Appellant’s contention is that it has not
been proved that there was an agreement between the Appellant and the
two perpetrators.
[15]
It is important, as regards common purpose, to distinguish common
purpose by agreement and common
purpose by active association
[1]
.
While this Court agrees that there was no agreement, the evidence
shows that there was an active association between the Appellant
and
the conduct of the other perpetrators.
[16]
This Court is of the view that but for the conduct of the Appellant
by holding Kagiso, who was the
only person preventing Karas from
stabbing the deceased, enabled Karas to continue stabbing the
deceased. The Appellant’s
conduct accounts for common purpose
by association, it associates with that of Karas.
[17]
This Court is of the view that the Appellant
satisfied all requirements for common purpose by association
as
listed in
Mgedezi
[2]
in that:
17.1 he was
present at the scene where the violence was being committed;
17.2 he
was aware of the assault on the deceased;
17.3 he intended to make
common cause with those who were actually perpetrating the assault;
17.4 he
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;
17.5 he
should have foreseen the possibility of the deceased being killed and
performed his own act of association
with recklessness as to whether
or not death was to ensue.
[18]
As regards the argument by the Appellant that common purpose was an
afterthought, as it was not
explicitly mentioned in the judgment. It
is this Court’s view that the judgment does not need to contain
a full, textbook
articulation of the doctrine. The test is whether
the court's reasoning shows it understood and applied the correct
test. If, in
its analyses of the evidence against an accused, the
court considered the requirements for common purpose, then the
conclusion
is strong that it has applied the doctrine of common
purpose, even if the term itself is not explicitly stated.
[19]
The appeal on conviction is, as a result, dismissed.
Ad
Sentence
[20]
In the case of
S
v Rabie
[3]
it
was stated by Holmes JA
that:
“
In
every appeal
against a sentence, whether imposed by a magistrate or a Judge, the
Court hearing the appeal -
(a)
should be guided by the principle that
punishment is "pre-eminently a matter for the discretion
of the
trial Court"; and
(b)
should be careful not to erode such discretion; hence the further
principle that the sentence
should only be altered if the discretion
has not been "judicially and properly exercised
."
[21]
The question, therefore, is whether this Court has the authority to
alter the sentence of life
imprisonment imposed by the trial court.
Put differently, the question is whether the discretion of the trial
court has not been
judicially and properly exercised.
[22]
This Court will only interfere with the sentence imposed by the trial
court where there has been
an irregularity that results in a failure
of justice; that the court below misdirected itself to such an extent
that its decision
on sentence is vitiated; or the sentence is so
disproportionate or shocking that no reasonable court could have
imposed it
[4]
.
[23]
The Appellant was convicted of one count of murder and escaping from
lawful custody with the
provisions of
section 51(1)
of the
Criminal
Law Amendment Act, Act
105 of 1997 (CLAA), which provides that:
“
[n]otwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
who has been convicted
of an offence referred to in
Part I
of Schedule 2, to life
imprisonment.”
[24]
It is argued on behalf of the Appellant that the learned magistrate
misdirected herself in finding
that the Appellant failed to prove the
existence of substantial and compelling circumstances in this matter.
The trial court was
too harsh in imposing a sentence of life
imprisonment.
[25]
It is trite that a material misdirection by the trial court vitiates
its exercise of its discretion.
In
S v Malgas
, the
Supreme Court of Appeal held that:
“
Where material
misdirection by the trial court vitiates its exercise of that
discretion, an appeal court is of course entitled to
consider the
question of sentence afresh. In doing so, it assesses sentence as if
it were a court of first instance and the
sentence imposed by
the trial court has no relevance. As it is said, an appellate court
is large”.
[5]
[26]
The trite traditional factors applicable to sentencing are the
personal circumstances of the
offender (this would include mitigating
and aggravating factors); the nature and gravity of the offence; and
the interests of society.
[6]
In determining the sentence to be imposed,
the
purpose of sentencing, being prevention, retribution, reformation and
deterrence, must also be taken into account.
[7]
[27]
The personal circumstances of the appellant tendered in mitigation of
sentence are that:
27.1 the Appellant was 32
years old;
27.2 he is single;
27.3 he has a Grade 10
education;
27.4 he has no children;
27.5 he was a first
offender;
27.6 he was self-employed
and earned an income of R1500 per week, working in construction;
27.7 he supported two
siblings aged 18 and 23 as their parents were both deceased;
27.8 he was held in
custody from his arrest on 19 November 2019, until sentence was
imposed on 26 August 2024.
[28]
In terms of
section 51(3)
of the CLAA, the trial court has discretion
to impose a lesser sentence than the one prescribed by law, provided
there are substantial
and compelling circumstances which justify the
imposition of a lesser sentence.
[29]
Section 51(3)
of the CLAA provides as follows:
“
If any court
referred to in subsection (1) or (2) is satisfied that substantial
and compelling circumstances exist which justify
the imposition of a
lesser sentence than the sentence prescribed in those subsections, it
shall enter those circumstances on the
record of the proceedings and
must thereupon impose such lesser sentence.”
[30]
It is this Court’s view that there are substantial and
compelling circumstances warranting
a deviation from imposing the
prescribed sentence. Although one can consider the personal
circumstances of the Appellant, such
factors cannot be overemphasised
in light of the gravity of the offence and the interests of society.
This Court is, thus, at large
to look at sentence afresh.
[31]
The circumstances under which this offence was committed, and the
gravity of the offence, a lengthy
custodial sentence is still
warranted. The deceased died a very gruesome death with multiple stab
wounds.
Conclusion
[32]
The court must not evaluate the single witness's evidence in
isolation. It must consider it alongside
all other evidence presented
at trial to determine whether the State has proven guilt beyond
reasonable doubt. The final conclusion
must account for the totality
of the evidence. This Court is satisfied that the trial court was
correct in its admission of the
evidence of Mr Jiyane, more so as the
evidence of the Appellant was in itself not reasonably possibly true.
[33]
This Court concludes that while the term common purpose may not have
been preferred in the judgment,
factors applicable in the doctrine
were considered and hence the Appellant was correctly found guilty of
murder with common purpose
by association.
[33]
The magistrate should have at least considered the existence of
substantial and compelling circumstances.
The sentence imposed by the
trial court is shockingly too harsh given the fact that the Appellant
is a first-time offender and
that there is no evidence that the
offence was planned. Additionally, it could not be prove that there
was common purpose by agreement
but rather the conclusion was only
made on common purpose was by association. Under the circumstances,
this Court is of the view
that the sentencing imposed warrant
interference from this Court.
Order
[
34]
In the circumstances, the following order is made:
1. The
appeal against conviction is dismissed.
2. The
appeal on sentence is upheld, and the imposed sentence of life
imprisonment is set aside and replaced with
a sentence of 20 years
imprisonment.
3. The
sentence is to be ante-dated to the date of 26 August 2024.
ND KEKANA
ACTING JUDGE OF THE
HIGH COURT
I
concur,
NP MNGQIBISA-THUSI
JUDGE
OF THE HIGH COURT
Date
of hearing: 28 May 2026
Date
of judgment: 30 July 2026
APPEARANCES:
For
the Appellant: Adv LA Van Wyk (Legal Aid, SA)
For
the Respondent: Adv P Jacobs (Office of the Director of Public
Prosecutions, Gauteng Division, Pretoria)
[1]
S v
Mgedezi and Others
1989 (1) SA 687 (A)
[2]
Mgedezi
(supra).
[3]
1975(4) SA 855 (A).
[4]
S v
Bogaards
2013 (1) SACR 1
(CC)
at
para 41.
[5]
S v
Malgas
2001 (2) SA 1222
(SCA) para 12.
[6]
Ibid
at para 25F.
[7]
S v RO
and Another
2010 (2) SACR 248
(SCA) para 30.