THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 698/2017

In the matter between:

MANDLA MSIMANGO

APPELLANT

and

THE STATE
RESPONDENT

Neutral citation: Msimango v The State (698/2017) [2017] ZASCA 181 (01
December 2017)

Coram:
Cachalia and Bosielo JJA and Tsoka, Ploos van Amstel and
Rogers AJJA

Heard:

02 November 2017

Delivered:
01 December 2017

Summary: Criminal Law – appellant convicted of one count of robbery with
aggravating circumstances read with s 51(2) of the Criminal Law Amendment
Act 105 of 1997 and two counts of attempted murder based on common
purpose. No allegations of common purpose in the charge sheet.

___________________________________________________________________________
ORDER

On appeal from: South Gauteng High Court, Johannesburg (Makume J and
Collis AJ sitting as court of appeal):

1 The appeal against the conviction in respect of count 1 is dismissed.
2 The appeal against sentence imposed in respect of count 1 is upheld.
3 The sentence of 20 years‟ imprisonment in respect of count 1 is set aside
and substituted with:
„(a) The appellant is sentenced to 13 years‟ imprisonment.‟
4 The appeal against the conviction in respect of count 3 is upheld and the
conviction and resultant sentence are set aside.

JUDGMENT

Bosielo JA (Cachalia J and Tsoka, Ploos Van Amstel and Rogers AJJA
concurring):

[1] The appellant stood trial in the regional court, Johannesburg, on three
counts. Count 1 was that of robbery with aggravating circumstances as
envisaged in s 1 of the Criminal Procedure Act 51 of 1977 (CPA), in that a
firearm was used. In addition, the charge alleged that this count should be read
with the provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997
(CLAA), which prescribed a minimum sentence of not less than fifteen years
unless the court has found that there are substantial and compelling
circumstances which justify the imposition of a lesser sentence. In count 2, the
appellant was charged with attempted murder where the complainant, Mr Dixon
Kasinga (Kasinga), was shot with a firearm whilst count 3 was a charge of

attempted murder where Mr Samuel Marumenya (Marumenya) was assaulted
with a meat cleaver.

[2] At the end of the trial in the regional court, the appellant was convicted
on counts 1 and 3, and was acquitted on count 2. The regional magistrate
sentenced the appellant to 20 years‟ imprisonment in respect of count 1 and five
years in respect of count 3. The effective sentence was 25 years‟ imprisonment.

[3] With the leave of the court below, the appellant appealed against his
convictions and sentences on both counts 1 and 3. His convictions were
confirmed by the court below but his sentence on count 3 was ordered to run
concurrently with the sentence on count 1. His sentence was predated to 22
February 2010. The effective sentence for the appellant was 20 years‟
imprisonment.

[4] Aggrieved by this, the appellant petitioned this Court for special leave to
appeal, which this Court granted on 8 September 2015.

[5] The facts leading to this appeal can be conveniently summed up as
follows: Marumenya, a Nigerian national, conducted a recycling business at No
33 Hanau Street, in Jeppes Town, Johannesburg. The premises are situated near
Jeppes Men‟s Hostel. He lived there and also shared the premises with Mr
Mfanafuthi Mgwewu (Mgwewu), a local resident who hails from Soweto in
Johannesburg and Kasinga, a Malawian citizen.

[6] Marumenya testified that on 17 May 2008, he received information that
Zulu speaking people from the Jeppe hostel were attacking foreigners. Mgwewu
arrived at Marumenya‟s home the following morning and informed him that he
had seen terrible devastation at the places of some Malawians. Marumenya

testified that Mgwewu told him that some men swore at him and threatened to
burn his place down. After speaking to the men who confirmed the imminent
attacks of foreigners‟ properties, Mgwewu went to Marumenya and told him
that those men wanted some money as a protection fee against imminent attacks
on all foreigners. Marumenya gave Mgwewu R350 to give to them ostensibly as
a protection fee.

[7] At about 16h00, two men returned to Marumenya‟s place. Mgwewu
recognised one of the two men as the man to whom he had paid the money that
morning. He called him „Simphiwe‟ as this is the name he gave him in the
morning, apparently to facilitate their communication when the attacks started.
He did not know the other person, who is the appellant in this appeal.
Unexpectedly, the two men became violent and started to search them. They
then herded Marumenya, Mgwewu and Kasinga into a toilet on the premises
where they were held hostage and assaulted. Inside the toilet, the appellant hit
Marumenya with a firearm on his head and took his cellular phone. The two
men demanded money. In an attempt to stop this assault, Marumenya produced
his ATM card and offered them some money. When they showed no interest in
his ATM card, he offered them a further R1800 which he had in his wallet at his
house.

[8] Marumenya testified further that whilst this was happening Simphiwe
went to his room where Marumenya had left his fiancé. She was also taken to
the toilet where Marumenya, Kasinga and Mgwewu were being held hostage.
At this time, Marumenya stood up and tried to negotiate some settlement with
the appellant. Apparently, this angered the appellant, and, as a result, he hit him
with the barrel of a firearm on his head. The appellant furthermore threatened to
shoot him.

[9] Suddenly, a sound of gun fire came from the toilet. The appellant rushed
to the toilet. A struggle ensued during which Mgwewu attempted to grab the
appellant‟s hand which held the gun. The appellant shot at Mgwewu and at
Marumenya whilst they were approximately one metre apart, but fortunately the
bullet missed him. At this stage, Simphiwe disposed him of the speaker and hit
him therewith. Whereafter Marumenya fled to the kitchen and returned with a
meat cleaver. Simphiwe then took the meat cleaver from him and hit him on his
head with the meat cleaver which caused him to lose consciousness.

[10] After he regained consciousness, he discovered that Kasinga had been
shot in his mouth. He was seriously injured to the extent that he could not stand
up. Both Marumenya and Kasinga were admitted to Johannesburg Hospital
Intensive Care Unit for medical treatment. While being attended to at the
hospital, Marumenya saw and identified the appellant who was also brought
there for medical treatment. He told Kasinga about his discovery. Kasinga also
identified the appellant as one of the two men who had earlier assaulted them at
Marumenya‟s home.

[11] The police were called to the hospital where Marumenya identified the
appellant to the police as the person who had assaulted and robbed him of his
property at his premises. The appellant had a bullet embedded in his wrist and
an injury on his ear where Mgwewu had bitten him.

[12] During the ensuing trial, a medical report in respect of Marumenya, the
so-called J88, was admitted into the record as an exhibit in terms of s 220 of the
CPA. It reflected that Marumenya had suffered multiple scalp lacerations to the
head, but not a breaching scalp, and one posterior scalp laceration underlying
the back of the skull. Marumenya was referred to a neurosurgeon for further
examination.

[13] The State then called Mgwewu to testify. Suffice to say that his testimony
corroborated Marumenya‟s.

[14] 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.‟

[16] Section 35(3) falls under Chapter 2 of the Constitution under the heading,
the Bill of Rights. Section 7 of the Constitution commands the State to respect,
protect, promote and fulfil the Rights in the Bill of Rights. However, this is
subject to legitimate limits in terms of s 36 of the Constitution. The requirement
embodied in s 35(3) is not merely formal but substantive. It goes to the very
heart of what a fair trial is. It requires the state to furnish every accused with
sufficient details to put him or her in a position where he or she understands
what the actual charge is which he or she is facing. In the language of
s 35(3)(a), this is intended to enable such an accused person to answer and

defend himself in the ensuing trial. Its main purpose is to banish any trial by
ambush. This is so because our criminal justice is both adversarial and
accusatory.

[17] The Constitutional Court enunciated the right to a fair trial as follows in
the seminal case of S v Zuma & others 1995 (1) SACR 568 (CC) para 16:
„That caveat is of particular importance in interpreting s 25(3) of the Constitution. The right
to a fair trial conferred by that provision is broader than the list of specific rights set out in
paras (a) to (j) of the subsection. It embraces a concept of substantive fairness which is not to
be equated with what might have passed muster in our criminal courts before the Constitution
came into force. In S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A), the
Appellate Division, while not decrying the importance of fairness in criminal proceedings,
held that the function of a Court of criminal appeal in South Africa was to enquire “whether
there has been an irregularity or illegality, that is a departure from the formalities, rules and
principles of procedure according to which our law requires a criminal trial to be initiated or
conducted”.
A Court of appeal, it was said (at 377)
“does not enquire whether the trial was fair in accordance with “notions of basic fairness and
justice”, or with the “ideas underlying the concept of justice which are the basis of all
civilised systems of criminal administration”.
That was an authoritative statement of the law before 27 April 1994. Since that date s 25(3)
has required criminal trials to be conducted in accordance with just those “notions of basic
fairness and justice”. It is now for all courts hearing criminal trials or criminal appeals to give
content to those notions.‟
Although the Constitutional Court was here dealing with s 25(3) of the Interim
Constitution which has now been replaced by s 35(3) of the Constitution, this
dictum is still relevant to s 35(3). See also National Director of Public
Prosecutions v King [2010] ZASCA 8; 2010 (2) SACR 146 (SCA).

[18] Both counsel conceded that as the charge sheet is silent on any possible
reliance on the doctrine of common purpose, and further that there was no

application for amendment of the charge sheet in terms of s 86 of the CPA, the
conviction of the appellant on attempted murder in count 3 cannot stand. I
agree.

[19] The second question relates to the appropriateness of the effective
sentence of 20 years‟ imprisonment for robbery with aggravating circumstances
where a firearm was used. It is clear from the evidence, looked at holistically,
that the sentence of 20 years‟ imprisonment was erroneously influenced by the
circumstances surrounding the conviction for attempted murder on count 3.
Now that the conviction on count 3 has been set aside and the sentence of five
years‟ imprisonment have fallen away, the question remains whether the
effective sentence of 20 years‟ imprisonment in respect of count 1 is still
appropriate. Put otherwise, whether the sentence is not so disturbingly
disproportionate to the conviction that it amounts to substantial and compelling
circumstances as required by s 51(3) of the CLAA which justifies a departure
from the minimum sentence.

[20] In order to answer this question, it is necessary to revisit the facts and
circumstances underpinning the sentence on the charge of robbery with
aggravating circumstances. This case has the following serious aggravating
factors. These are that the appellant played a prominent and key role in
extorting money from the complainant that morning. He took advantage of an
atmosphere of xenophobic attacks which rendered the complainant and his
employees vulnerable; that he extorted money from the complainant by falsely
offering to protect them against the xenophobic attacks; that the entire robbery
was based on greed; that the complainant and his employees were subjected to a
prolonged and wanton attack.

[21] The evidence tells us further that, after he had successfully extorted
money from Marumenya in the morning, the appellant went back to his co-
perpetrator where they planned the eventual attack and concomitant robbery;
armed with a firearm, they both returned to Marumenya‟s premises. After they
had herded Marumenya, Kasinga, Mgwewu, and Marumenya‟s fiancé into the
toilet, they unleashed a vicious attack on them. As a result Marumenya suffered
serious injuries with far-reaching consequences. The medical report tells us that
he needed further specialist treatment and according to the neurologist as a
result of his injuries sustained during the attack, he damaged his brain in the
sense that his feet feel numb. Kasinga in turn was shot in the mouth.

[22] Sadly, there are indications that Marumenya, being a foreigner, was
identified as a soft target for the appellant and his friend, Simphiwe. These
kinds of assaults by nationals on the foreigners in our country came to be known
as xenophobia. During this period, xenophobia had spread like cancer in the
country. Needless to state that xenophobic attacks have had a negative effect on
our countries‟ image both continentally and internationally. It is a scourge that
we need to root out wherever it rears its ugly head.

[23] For an appropriate sentence, it is important that I consider all the
circumstances relevant to sentencing including the appellant‟s personal
circumstances. The appellant was 23 years old at the time; he has two children
from different mothers, one is four years old and the other is three years and six
months old; he is earning R200 per week for washing taxis; he left school at
grade 9.

[24] In terms of s 51(2) of the CLAA, the appellant should have been
sentenced to a period of not less than 15 years‟ imprisonment in the absence of
substantial and compelling circumstances. It is true that the regional magistrate

had the power to add a further five years to the minimum sentence of 15 years‟
imprisonment. However, the increase is not to be done whimsically but on
sound legal principle which can withstand scrutiny. This requires any presiding
officer who intends to invoke this power to give reasons therefore. Regrettably,
the regional magistrate gave no reasons for increasing this sentence with an
additional five years. On the evidence as it stands, the increase is not justified.

[25] It remains a salutary principle of our law that presiding officers should
give reasons for every decision which they make, particularly if it has adverse
consequences for the accused. This principle was enunciated as follows by this
Court in S v Mathebula & another [2011] ZASCA 165; 2012 (1) SACR 374
(SCA) par 10:
„A regional magistrate has the discretion to impose a sentence exceeding the minimum
sentence prescribed by the Act with an additional five years as provided for in the proviso to
s 51(2). Such a discretion must, however, be exercised judicially and on reasonable grounds.
Where a regional magistrate intends to depart from the prescribed minimum sentence, it is
proper and fair that the regional magistrate gives reasons for such a departure. Absent any
such reasons, the conclusion becomes inescapable that such a decision is arbitrary or that the
sentencing discretion was not exercised judicially. It is not proper for an appeal court to have
to speculate about the reasons which motivated the regional magistrate to impose a sentence
higher than the minimum sentence prescribed. Such an approach cannot be countenanced as it
is subversive to the principles of openness, transparency, accountability and fairness. It is trite
that judicial officers can only account for their decisions in court through their judgments. It
is through judgments which contain reasons that judicial officers speak to the public. Their
reasons are therefore the substance of their judicial actions. Dealing with a similar matter this
court enunciated the principle as follows in S v Maake [2010] ZASCA 51; 2011 (1) SACR
263 (SCA) para 19:
“It is not only a salutary practice, but obligatory for judicial officers to provide reasons to
substantiate conclusions.”
The court went on to state the following in para 20:
“When a matter is taken on appeal, a court of appeal has a similar interest in knowing why a
judicial officer who heard the matter made the order which he did. Broader considerations

come into play. It is in the interest of the open and proper administration of justice that courts
state publicly the reasons for their decisions. A statement of reasons gives some assurance
that the court gave due consideration to the matter and did not act arbitrarily. This is
important in the maintenance of public confidence in the administration of justice.”
See Strategic Liquor Services v Mvumbi NO & others [2009] ZACC 17; 2010 (2) SA 92
(CC); 2009 (10) BCLR 1046 CC para 15.‟
See also S v Maake 2011 (1) SACR 263 (SCA) para 19.

[26] As to whether there were substantial and compelling circumstances to
justify a deviation from the prescribed minimum sentence of 15 years‟
imprisonment, the appellant‟s personal circumstances were not on their own
sufficient to pass muster. However, he had spent 21 months in a correctional
centre awaiting trial. This tilts the balance in his favour and makes the sentence
of 15 years‟ imprisonment disproportionate in all the circumstances. Justice and
fairness requires that the appellant should be credited with those years.

[27] In the result, the following order is made:
1 The appeal against the conviction in respect of count 1 is dismissed.
2 The appeal against sentence imposed in respect of count 1 is upheld.
3 The sentence of 20 years‟ imprisonment in respect of count 1 is set aside
and substituted with:
„(a) The appellant is sentenced to 13 years‟ imprisonment.‟
4 The appeal against the conviction in respect of count 3 is upheld and the
conviction and resultant sentence are set aside.

________________________
L O Bosielo
Judge of Appeal

Appearances
For the Appellant:
W Karam

Instructed by:
Justice Centre, Pretoria

Justice Centre, Bloemfontein

For the Respondent:
LR Surendra
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

01 December 2017

STATUS

Immediate

Msimang v The State (698/2017) [2017] ZASCA 181
Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

The SCA today upheld an appeal and set aside and substituted the decision of the South Gauteng High
Court, Johannesburg.

The appellant, stood trial in the regional court, Johannesburg on three counts.  The appellant was
convicted on count 1 and 3 and acquitted on count 2. The trial court sentenced the appellant on count 1
(robbery with aggravating circumstances) to 20 years’ imprisonment and five years in respect of count 3
(attempted murder). The effective sentence was 25 years’ imprisonment.

The appellant launched an appeal against both his convictions and sentences with the leave of the court
below. The convictions were confirmed but his sentence on count 3 was ordered to run concurrently with
the sentence on count 1.  Aggrieved by this, the appellant petitioned this Court for special leave, which
was granted on 08 September 2015.

The SCA held that the trial court erred in convicting the appellant on count 3 by relying on the doctrine of
common purpose, even though it was never averred in the charge sheet or proved in evidence. The
conviction of the appellant on attempted murder in count 3 was set aside. The effective sentence of 20
years’ imprisonment was erroneously influenced by the circumstances surrounding the conviction for
attempted murder on count 3.

The SCA held further that the appellant’s personal circumstances were not on their own sufficient to
qualify as substantial and compelling circumstances to deviate from the prescribed minimum sentence of
15 years’ imprisonment. However, the appellant spent 21 months in a correctional centre awaiting trial
and that he should be credited with those years.

In the event, the SCA found a sentence of 13 years' imprisonment to be appropriate in the circumstances.