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[2026] ZANWHC 226
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Motshedi v S (Appeal) (CA 51/2025) [2026] ZANWHC 226 (1 September 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHWEST DIVISION
MAHIKENG
CASE
NO: CA51/2025
Reportable: NO
Circulate to Judges:
NO
Circulate to
Magistrates: NO
Circulate to Regional
Magistrates: NO
In
the matter between:
NNOSANG
CYPRIAN
MOTSHEDI
APPELLANT
And
THE
STATE
RESPONDENT
Judgment is handed down
electronically by distribution to the parties’ legal
representatives by e-mail. The date that the
judgment is deemed to be
handed down is
01 SEPTEMBER 2026
at
16h00
.
Summary:
Appeal against convictions and sentences
—
Court a quo misdirected itself regarding the facts
and the law
—
the effect of not explaining the consequences of
the
sentencing provisions contained in
section 51
of the
Criminal Law Amendment Act 105 of 1997
to the
accused at the beginning of the trial- Charge sheet not reflecting
that accused is alleged to have committed the offence
in question in
furtherance of common purpose
—
failure to inform accused of
the charge in full is in direct infringement of the accused’s
right to a fair trial
which is contained in s 35(3)(a) of the Constitution.
Sentence
—
Appellant court can only
interfere with the sentence of the court a quo in a case of serious
misdirection
—
sentences and convictions
set aside.
ORDER
(i)
Condonation for the late filing of the appeal is granted.
(ii)
The appeal against convictions and sentences on all three counts
succeed.
(iii)
The convictions and sentences on all three counts are set aside.
JUDGMENT
Coram: Hendricks JP
and Matlhape AJ concurring
Introduction
[1]
This is an appeal against the convictions and sentences imposed upon
the appellant on 01 October
2024 by the Taung Regional Court per
Regional Magistrate B Zulu. The appellant was convicted of three
offences, namely:
1.1
One count of housebreaking with intent to rob and robbery read with
the provisions of section
260 and 262 (1) of the Criminal Procedure
Act 51 of 1977 (“the CPA”) in respect of which he was
sentenced to 15 years’
imprisonment;
1.2
One count of attempted murder, in respect of which he was sentenced
to two years imprisonment;
1.3
One count of contravening the provisions of Section 5(2), read with
sections 1, 56(1), 57,
58, 59, 60, and 61 of Act 32 of 2007 also read
with sections 256 and 261 of the CPA (Sexual Assault) in respect of
which he was
also sentenced to two years imprisonment.
[2]
The sentences were ordered to run concurrently.
[3]
On 27 March 2025, the appellant was granted condonation for the late
filing of his notice of appeal and leave
to appeal. On 19 June 2025
the appellant was granted bail pending appeal. The appellant appeals
against both convictions and sentences
on all three counts and also
seeks condonation
for the late filing of this appeal.
It is common cause that at the commencement of the
trial, the sentencing provisions contained in section 51 of the
Criminal Law
Amendment Act 105 of 1997 (“the CLAA”) were
not explained to the appellant. It is further common cause that the
charge
sheet did not invoke the doctrine of common purpose in
relation to the charges upon which the appellant was ultimately
convicted.
[4]
The appellant pleaded not guilty to all three counts and exercised
his constitutional right to
remain silent. At the conclusion of the
trial, the court
a quo
found that the State had proved its
case beyond reasonable doubt on all three counts.
[5]
The respondent (State), however, concedes the appeal against both
conviction and sentence. It
bears mentioning that although the
State’s concession is an important consideration, this court is
nevertheless required
to consider the record and determine whether
the convictions and sentences can properly stand. The appeal
accordingly falls to
be determined on the record and the applicable
legal principles. Similarly, the fact that the State does not oppose
the condonation
application by the appellant does not mean that such
should escape this court’s scrutiny.
Grounds of Appeal
[6]
The appellant advances, in substance the following grounds of appeal:
6.1
that the learned Regional Magistrate erred in finding that the State
had proved the appellant's
guilt beyond reasonable doubt on all three
counts;
6.2
that the Magistrate misdirected himself in finding that the technical
evidence of Mr Fishang
Singh, the cellular telephone analyst, was
sufficient to establish the appellant's guilt;
6.3
that the Magistrate erred in finding a contradiction between the
appellant’s version
and the evidence of Mr Singh regarding the
tower location at which the SIM card was inserted;
6.4
that the Magistrate erred in finding that the technical evidence
established that the SIM
card was inserted into a handset belonging
to one of the complainants;
6.5
that the Magistrate erred in rejecting the appellant’s alibi as
an afterthought;
6.6
that the Magistrate misdirected himself by relying on the doctrine of
common purpose when
common purpose was neither alleged in the charge
sheet nor put to the appellant;
6.7
that the Magistrate failed to determine whether the robbery was
committed with aggravating
circumstances and failed to properly
invoke the applicable provisions of the CLAA; and
6.8
that the Magistrate erred in sentencing the appellant in terms of the
minimum-sentence legislation
without properly informing him of its
applicability.
Ad Condonation
[7]
Before dwelling in the merits of the appeal, this court is called
upon to first determine the
application for condonation of the late
noting and prosecution of this appeal. The principles applicable to
applications of this
nature are well established. Condonation is not
to be had merely for the asking. The overriding consideration is
whether it is
in the interests of justice to grant the indulgence
sought. The court must in determining that question, have regard to
all relevant
circumstances including the extent and cause of the
delay, the explanation furnished and importantly the applicant’s
prospects
of success. In this matter, leave to appeal was granted on
27 March 2025 and the Notice of Appeal was to be filed on 17 April
2025.
The Notice of Appeal was only filed on 31 October 2025
resulting in a delay of six- and-a-half months.
[8]
In
Van
Wyk v Unitas Hospital and Another
[1]
the
Constitutional Court held that:
‘
This
Court has held that the standard for considering an application for
condonation is the interests of justice. Whether it is
in the
interests of justice to grant condonation depends on the facts and
circumstances of each case. Factors that are relevant
to this
enquiry include but are not limited to the nature of the relief
sought, the extent and cause of the delay, the effect of
the delay on
the administration of justice and other litigants, the reasonableness
of the explanation for the delay, the importance
of the issue to be
raised in the intended appeal and the prospects of success
.’
[9]
Similarly, in
Mulaudzi
v Old Mutual Life Assurance Company (South Africa) Ltd and Others
[2]
the
Supreme Court of Appeal held that:
‘
[26]
What calls for an explanation is not only the delay in the timeous
prosecution of the appeal, but also the delay in seeking
condonation.
An appellant should, whenever he realises that he has not complied
with a rule of this court, apply for condonation
without delay. A
full, detailed and accurate account of the causes of the delay and
their effects must be furnished so as to enable
the Court to
understand clearly the reasons and to assess the responsibility.
Factors which usually weigh with this court in considering
an
application for condonation include the degree of non-compliance, the
explanation therefor, the importance of the case, a respondent’s
interest in the finality of the judgment of the court below, the
convenience of this court and the avoidance of unnecessary delay
in
the administration of justice.’
[10]
The explanation advanced by the applicant must therefore be assessed
against the entire period of non-compliance.
In
Uitenhage
Transitional Local Council v South African Revenue Service
[3]
the
SCA stressed the necessity for a full, detailed and accurate account
of the causes of the delay and their effect and held that:
‘
One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to be had
merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so
as to enable the Court
to understand clearly the reasons and to assess the responsibility.
It must be obvious that if the non-compliance
is time-related then
the date, duration and extent of any obstacle on which reliance is
placed must be spelled out.’
[11]
The court must also consider whether the intended appeal enjoys
reasonable prospects of success. This does
not require the court, at
the condonation stage, to determine the merits of the appeal finally.
The enquiry is whether there is
a reasonable prospect that another
court would come to a different conclusion.
[12]
In
Mulaudzi,
[4]
the SCA confirmed that prospects of success are an important,
although not decisive, consideration. The court should be furnished
with sufficient information to enable it to make at least a
prima
facie
assessment
of the merits of the intended appeal. A bare assertion that the
appeal has good prospects is insufficient. In this case,
the
appellant explains that the delay was caused by the fact that he rely
on family to make means available to secure legal representation.
He
states that once legal representation was secure, the appeal was
noted promptly.
[13]
Having considered the grounds upon which the intended appeal is
based, I am satisfied that the applicant
has demonstrated reasonable
prospects of success and that the grounds raised are not frivolous or
merely speculative and they disclose
issues which warrant
consideration by this court. I accordingly attach appropriate weight
to this factor in determining the interests
of justice.
[14]
Ultimately, condonation involves a weighing-up of competing
considerations. The applicant’s non-compliance
with the
prescribed time periods cannot be condoned as a matter of right.
However, procedural rules exist to facilitate the administration
of
justice and are not intended to operate as an end in themselves.
[15]
Having regard to the explanation for the delay, the extent of the
non-compliance taken together with the
applicant’s prospects of
success, I am satisfied that the interests of justice favour the
granting of condonation.
The
applicant’s explanation is satisfactory, no prejudice will be
suffered by the respondent if condonation is granted and
it is in the
interests of justice that condonation be granted.
Ad Conviction
[16] It
is trite that before an accused can be convicted of an offence based
on the allegation that he committed
the offence in question in
furtherance of a common purpose, such fact should be clearly and
unequivocally set out in the charge
sheet. The accused should be
appraised of that fact before pleading to the charge. This is, in my
view, a fundamental issue in
the determination of this appeal. It is
common cause that the charge sheet did not allege that the appellant
acted in common purpose
with any other person in the commission of
the alleged offences. Nor does the record disclose that the State
sought an amendment
of the charge sheet in terms of section 86 of the
CPA so as to introduce common purpose. Notwithstanding this, the
court a quo
relied upon common purpose as a basis for the appellant’s
conviction.
[17]
That approach cannot be sustained. Section 35(3)(a) of the
Constitution provides that every accused person
has the right to a
fair trial, which includes the right “to be informed of the
charge with sufficient detail to answer it”.
The right is
substantive and not merely formal. In
Msimango
v S
[5]
the
Supreme Court of Appeal dealt with circumstances strikingly similar
to those in the present matter. The regional magistrate
had relied on
common purpose although the doctrine had neither been alleged in the
charge sheet nor proved in evidence. The court
held that:
“
.
. .It is common cause that in convicting the appellant on count 3,
the regional magistrate relied on the doctrine of common purpose
even
though it was never averred either in the charge sheet or proved in
evidence. It was impermissible for the regional magistrate
to have
invoked the principle of common purpose as a legal basis to convict
the appellant on count 3 as this never formed part
of the state’s
case.
[15]
Undoubtedly, the approach adopted by the regional magistrate of
relying on common purpose which was mentioned at the end of
the trial
is inimical to the spirit and purport of s 35(3)(
a
) of the
Constitution of the Republic of South Africa, Act 108 of 1996 (the
Constitution) under the heading ‘Arrested, detained
and accused
persons’. In fact it is subversive of the notion of the right
to a fair trial which is contained in s 35(3)(
a
) of the
Constitution which provides in clear terms that:
‘
(3)
Every accused person has a right to a fair trial, which includes the
right –
(a)
to be informed of the
charge with sufficient details to answer it.’”
[18]
The principle has recently been reaffirmed and authoritatively
restated by the Supreme Court of Appeal in
Ntuli
v The State
[6]
wherein
the court considered an appeal where common purpose had not been
alleged in the charge sheet and the State had not alerted
the accused
during the trial that it intended to rely on that doctrine. The court
held that:
‘
There
was, accordingly, no forewarning to Mr Ntuli that his conviction was
sought on the basis of common purpose. A conviction based
on common
purpose would, in these circumstances, amount to material unfairness.
He was made to believe that the convictions were
sought against him
based on his own direct act of shooting at the police officers. His
belief, in this regard, was strengthened
by the fact that this was
put to him by the prosecutor when he was being cross-examined. The
State’s failure to allege in
the charge sheet or alert the
defence to its reliance upon common purpose is fatal to the
convictions that were sustained on this
basis. Absent reliance on
common purpose, the State failed to discharge its
onus
to
prove beyond a reasonable doubt that Mr Ntuli’s actions
amounted to attempted murder.
In
the circumstances of this case the State’s failure to have
informed Mr Ntuli of its reliance on the doctrine of common
purpose
and nevertheless relying on that doctrine to convict him on the
attempted murder counts was an infringement of his right
to a fair
trial. The full court ought to have upheld his appeal in respect of
counts 6, 7 and 8.’
[19]
The fact that the prosecutor did not allege common purpose when the
charge was put to the appellant means
that the appellant was not
placed on notice that his criminal liability could be established
through the acts of another person
with whom he was alleged to have
shared a common purpose. There is also no indication that the
appellant was alerted to such a
case during the proceedings. Once
common purpose is excluded from consideration, the State was required
to prove beyond reasonable
doubt that the appellant himself committed
the offences with which he was charged. Taking into account the facts
of this case as
well as the concession to this fact by the State, is
proof that the evidence does not meet that threshold. It therefore
follows
that the court
a quo
erred in relying on common
purpose as a basis for the appellant’s conviction.
[20]
Similarly, the issue of identity is central to this appeal. Neither
of the complainants identified the appellant
as one of the
perpetrators. The record reflects that the complainants were unable
to identify the intruders. The court a quo itself
recognised that the
appellant had not been identified by the complainants. The absence of
direct identification is not, of course,
necessarily fatal to a
conviction. A conviction may properly follow from circumstantial
evidence where the totality of the proved
facts establishes the
identity of the perpetrator beyond reasonable doubt.
[21]
Identification evidence must nevertheless be approached with caution.
In
S
v Mthetwa
[7]
the
Appellate Division warned that, because of the fallibility of human
observation, identification evidence must be approached
with caution
and that the reliability of the observation must be tested with
reference to factors such as lighting, visibility,
eyesight,
proximity, opportunity for observation, duration of observation, and
other circumstances affecting reliability. The hit
is not exhaustive.
[22]
The principle remains firmly established. In
S
v Charzen and Another
[8]
the
SCA in accentuating the dangers inherent in identification evidence,
held that errors in description, particularly when unexplained
and
coupled with an absence of physical evidence, may create a reasonable
doubt and said the following:
‘
But,
as our courts have emphasised again and again, in matters of
identification honesty and sincerity and subjective assurance
are
simply not enough. There must in addition be certainty beyond
reasonable doubt that the identification is reliable, and it
is
generally recognised in this regard that evidence of identification
based upon a witness’s recollection of a person’s
appearance can be ‘dangerously unreliable’, and must be
approached with caution. This case illustrates the risks.’
[23] In
the present matter the difficulty goes beyond the ordinary caution
required in assessing identification
evidence. There simply was no
identification of the appellant by the complainants. Be that as it
may, the State concedes that there
is no evidence relating to the
identification of the appellant. The State accordingly sought to
establish the appellants connection
with the offences principally
through the cellular telephone evidence. That evidence must therefore
be considered carefully.
[24]
The court
a quo
placed substantial reliance upon the evidence
of Mr Fishang Singh, the cellular telephone analyst. The evidence
established is
in essence that information obtained through a section
205 of the CPA process indicated that a SIM card associated with the
appellant
had subsequently been used in a cellular handset allegedly
belonging to one of the complainants. The difficulty is that this
evidence
does not without more, establish that the appellant was the
person who stole the cell phone. Nor does it establish that the
appellant
was present at the complainants’ property when the
offences were committed.
[25] Of
particular importance is the absence of evidence establishing the
relevant tower location and thereby
placing the cell phone and
consequently the appellant, at or near the scene of the offences at
the relevant time. Likewise, the
State concedes that Mr Singh did not
provide the necessary evidence concerning the tower location to
establish the movements of
the cell phone from the time it was
allegedly taken from the complainants until the time it was found in
use by the appellant.
In the absence of such evidence, the conclusion
reached by the Regional Magistrate concerning the location at which
the SIM card
was inserted was speculative. A court is not entitled to
supplement evidence by inference where the inference itself depends
upon
facts which were never proved.
[26]
The distinction between a legitimate inference and speculation is
fundamental. An inference must arise from
proved facts and should not
be based upon conjecture. The court
a quo
further found that
there was a contradiction between the appellant’s version and
the evidence of Mr Singh concerning the
tower location. There was,
however, no evidence from Mr Singh establishing the tower location
relied upon by the Regional Magistrate.
In those circumstances, the
finding of a contradiction was not supported by the evidence. The
same difficulty applies to the finding
that the technical evidence
established that the handset in which the SIM card was inserted
belonged to the complainant.
[27]
The investigation officer testified that a cell phone box had been
handed to him by one of the complainants
and that he obtained the
IMEI number from that box. Yet, he could not recall the IMEI number
himself and the evidence was not satisfactorily
corroborated by the
complainant's testimony concerning the identity or description of the
cell phone. These evidential deficiencies
were material and ought to
have been considered in determining whether the State had excluded
reasonable doubt.
[28]
The State’s case against the appellant was, in material
respects, circumstantial. The classical principles
governing
circumstantial evidence were laid down in
R
v Blom
[9]
where the two cardinal rules were set out to be: (i) that the
inference sought to be drawn must be consistent with all the proved
facts and (ii) the proved facts must be such as to exclude every
reasonable inference other than the one sought to be drawn. These
principles have repeatedly been reaffirmed by our courts. In
S
v Chabalala
[10]
where the SCA explained that the correct approach is to weigh all the
elements pointing towards the guilt of the accused against
those
indicative of innocence, taking proper account of the inherent
strengths and weaknesses, probabilities and improbabilities
on both
sides, and then determine whether the balance weighs so heavily in
favour of the State as to exclude reasonable doubt.
The question is
therefore not whether the State's version is probable, or even more
probable than the appellant's version. The
question is whether the
proved facts exclude a reasonable possibility that the appellant is
innocent.
[29]
The present matter has numerous features that are of significance,
such as the fact that the complainants
did not identify the
appellant; no evidence places the appellant at the scene of the
offences; no fingerprints linking the appellant
to the scene were
established; no DNA linking the appellant to the relevant motor
vehicle or scene was established; and most importantly,
the DNA found
on the steering wheel of the recovered vehicle was that of accused
number 1 and not that of the appellant. When these
facts are
considered cumulatively, rather than selectively, the inference that
the appellant was one of the perpetrators cannot
be said to be the
only reasonable inference. The cell phone evidence may, at its
highest, establish that a SIM card associated
with the appellant was
subsequently used in a handset which the State alleged belonged to
one of the complainants. It does not,
without further evidence,
establish how, when or from whom the appellant acquired the handset.
[30]
It is entirely possible, on the evidence that the appellant acquired
the cell phone after the commission
of the offences without having
participated in the robbery. His evidence is that he bought the
aforesaid cell phone from a second
hand shop and he had no knowledge
of the fact that it was a stolen property. That possibility need not
be shown to be probable.
It need only be reasonably possible. As
stated in
S
v Van der Meyden,
[11]
the
State discharges its onus when the evidence establishes guilt beyond
reasonable doubt, and the accused is entitled to an acquittal
where
there is a reasonable possibility that he might be innocent. The
court went on to find that:
‘
In
order to convict, the evidence must establish the guilt of the
accused beyond reasonable doubt, which will be so only if there
is at
the same time no reasonable possibility that an innocent explanation
which has been put forward might be true. The two are
inseparable,
each being the logical corollary of the other. In whichever form the
test is expressed, it must be satisfied upon
a consideration of all
the evidence.’
[31] In
the circumstances, the court
a quo
accordingly erred in
treating the circumstantial and technical evidence as sufficient to
establish the appellant’s guilt
beyond reasonable doubt.
[32]
Furthermore, the appellant raised an alibi because his evidence was
that he was in Rustenburg on 18 April
2018 and that he left on 19
April 2018 after having gone there in search of employment. His uncle
testified in support of that
version. The court
a quo
rejected
the alibi as an afterthought. That approach cannot, with respect, be
sustained merely because the appellant raised the
alibi during the
trial. The proper question is whether, having regard to the totality
of the evidence, the alibi is reasonably
possibly true.
[33]
It is trite that an accused does not bear the burden of proving an
alibi. The burden remains throughout upon
the State to prove beyond
reasonable doubt that the accused was at the scene and committed the
offence. He is entitled to an acquittal
if his version is reasonably
possibly true.
In
the case of
R
v Hlongwane
[12]
the
Court stated the following:
“
The
legal position with regard to an alibi is that there is no onus on an
accused to establish it, and if it might reasonably be
true he must
be acquitted. R v Biya
1952 (4) SA 514
(AD). But it is
important to point out that in applying this test, the alibi does not
have to be considered in isolation.
. .
The
correct approach is to consider the alibi in the light of the
totality of the evidence in the case, and the Court’s
impressions
of the witnesses. In the Biya’s case supra,
Greenberg JA, said at page 521….’if on all the evidence
there is
a reasonable possibility that his alibi evidence is true it
means that there is the same possibility that he has not committed
the crime’
It
was again emphasised by the Appeal Court in the case of
S
v Shabalala
[13]
where
the Court stated the following:
‘
It
is trite law that where an alibi is raised there is no burden on the
accused to prove his alibi. The onus rests on the State
to prove his
alibi is false . . . The effect of the falseness of an alibi on an
accused’s case is to place him in a position
as if he had never
testified at all”.’
[34]
Even if the appellant’s alibi is not accepted as truthful in
every respect, that does not relieve the
State of its obligation to
prove its own case beyond reasonable doubt. The rejection of an
accused’s version does not, by
itself, constitute proof of the
State’s case. The totality of the evidence leaves a reasonable
possibility that the appellant
was not present when the offences were
committed. The State has accordingly failed to exclude that
reasonable possibility. A conviction
cannot rest upon speculation,
suspicion or probabilities falling short of the required standard of
proof. The constitutional standard
is proof beyond reasonable doubt.
Therefore, having considered the record as a whole, I am satisfied
that the State failed to discharge
that onus. The convictions on all
three counts therefore cannot stand.
Ad Sentence
[35]
The State concedes that the court a quo relied upon the minimum
sentence provisions of the
Criminal Law Amendment Act 105 of 1997
in
sentencing the appellant, notwithstanding that the charge sheet did
not properly invoke the applicable provision and that the
appellant
was not forewarned at the commencement of the trial that the State
would seek to rely upon those provisions. This is
material because an
accused must know, before pleading, not merely the factual
allegations but also the nature of the case he or
she is required to
meet, particularly where the prosecution seeks to invoke a statutory
regime carrying a prescribed minimum sentence.
[36]
In
Msimango
v S,
[14]
the
SCA considered the importance of proper notice of the
minimum-sentence regime and its implications for an accused’s
fair-trial
rights. Likewise, in
Simelane
v S
[15]
this
Court held that
‘
The
law with regard to
section 51
has
now crystalized and it is very clear. An accused need to be informed
with sufficient particularity exactly what the charge is
and what it
entails and if the Minimum Sentence legislation (Criminal Law
Amendment Act 105 of 1997) is applicable, as well as
what the minimum
sentence might be. Failure to specify the exact sub-section and to
warn the accused of the possible minimum sentence
is a fatal defect
and renders the sentence (and also the trial) unfair.’
[37]
The principle is consistent with the Constitutional Court’s
approach in
M
T v S; A S B v S; September v S
[16]
where
the Court stressed that the absence of a reference to the minimum
sentence legislation in a charge sheet does not invariably
determine
the matter; the enquiry is whether, in the circumstances of the
particular case, the accused's fair-trial rights were
infringed. That
approach is also expressly recognised in
Ntuli
.
[38]
The appellant was not warned that the State intended relying upon the
minimum sentence regime. The explanation
was only given to him at
sentencing stage when the magistrate said “
Now,
regarding the count 1, that of house breaking with intent to rob and
robbery, the provisions of section 51(2) of Part 1 of
Schedule 2 of
Act 105 of 1997 are applicable in that the applicable sentence is 15
years”.
The issue was explained to the
appellant only at the sentencing stage. Consequently, he was not
afforded a proper and meaningful
opportunity from the commencement of
the trial to appreciate and understand the potential sentencing
consequences arising from
the charge he faced.
[39]
It is trite that sentencing is primarily a matter within the
discretion of the trial court. An appellate
court does not ordinarily
interfere merely because it would have imposed a different sentence.
In
S
v Malgas
[17]
the
SCA explained the circumstances in which an appellate court may
interfere with the sentence imposed by a trial court, including
where
there has been a material misdirection which vitiates the sentencing
discretion. In the present matter, however, it is unnecessary
to
determine whether the individual sentences were disproportionate in
the
Malgas
sense.
[40]
The convictions themselves cannot stand. The sentences consequently
have no legal foundation and must likewise
be set aside.
[41]
The appeal must be considered holistically against the cumulative
circumstances which points to the fact
that the complainants did not
identify the appellant; there is no direct evidence placing the
appellant at the scene; the physical
evidence did not link the
appellant to the scene or the recovered vehicle; as well as the fact
that the State’s cell phone
evidence did not establish the
relevant tower location. Furthermore, it should be taken into account
that the State conceded to
the fact that the court
a quo
improperly relied upon common purpose notwithstanding that the
doctrine had not been alleged in the charge sheet or otherwise
brought to the appellant's attention. Likewise, the doctrine of
common purpose was not properly placed before the appellant which
evinces the fact that the sentence also stands to be set aside.
[42] I
accordingly conclude that the convictions are not sustainable and
that the appeal against conviction must
succeed. It follows
axiomatically that the sentence imposed should also be set aside.
Order
[43]
Resultantly, the following order is made:
(i)
Condonation for the late filing of the appeal is granted.
(ii)
The appeal against conviction and sentence on all three counts
succeed.
(iii)
The conviction and sentence on all three counts are set aside.
B MATLHAPE
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION,
MAHIKENG
I agree
R HENDRICKS
JUDGE PRESIDENT OF THE
HIGH COURTOF SOUTH AFRICA
NORTH WEST DIVISION,
MAHIKENG
APPEARANCES
For the Appellant:
Adv PT
RANGWAKO
Instructed by:
KGOSI THABO LETSAPA ATTORNEYS
For the
Respondent:
Adv T. NETSIANDA
Instructed
by:
The Director of Public Prosecutions,
North West Province.
Date
Heard:
06 February 2026
Date Handed
Down:
01 September 2026
[1]
[2007] ZACC 24
;
2008
(2) SA 472
(CC) at para 20.
[2]
2017
(6) SA 90
(SCA) at paras 26
.
[3]
2004
(1) SA 292
(SCA) at para 6.
[4]
Supra,
at para 34.
[5]
[2017]
ZASCA 181
;
2018 (1) SACR 276
(SCA) at paras 14–18.
[6]
(128/2023)
[2025] ZASCA 114
(30 July 2025), paras 15 and 16.
[7]
1972
(3) SA 766
(A) at 768 A to C.
[8]
[2006]
ZASCA 147
;
2006 (2) SACR 143
(SCA) para 10.
[9]
1989
AD 188
at 202–203.
[10]
2003
(1) SACR 134
(SCA) at para 15.
[11]
1999
(1) SACR 447
(W) at 448F–G.
[12]
1959
(3) SA 337
(A)
.
[13]
1986
(4) SA 734
(A).
[14]
Supra.
[15]
(CA
65/2019)
[2021] ZANWHC 24
(19 August 2021) para 2.4
[16]
[2018]
ZACC 27; 2018 (2) SACR 592 (CC).
[17]
2001
(2) SA 1222
(SCA) at para 12.