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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case no: 739/2021

In the matter between:

RASIMATE SAMUEL BALOYI
APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Rasimate Samuel Baloyi v The State (739/2021) [2022] ZASCA
35 (01 April 2022)

Coram:                  MOCUMIE, HUGHES JJA AND MAKAULA, SMITH AND WEINER
AJJA

Heard:
18 February 2022

Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published on the
Supreme Court of Appeal website and released to SAFLII. The date
and time for hand-down is deemed to be handed down on
01 April 2022.

Summary:
Criminal Law and Procedure – whether the murder was
premeditated – life sentence – appropriateness of sentence.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Limpopo Division of the High Court of South Africa, (Ledwaba AJ
and Phatudi J, sitting as court of appeal):

The appeal is dismissed.

___________________________________________________________________

JUDGMENT
___________________________________________________________________

Makaula AJA (Mocumie and Hughes JJA and Makaula, Smith and Weiner AJJA
concurring):

[1] This is an appeal against the judgment and order of the Limpopo Division of the
High Court, Polokwane (Ledwaba AJ and Phatudi J sitting as full bench), with leave of
this Court granted on the following limited ground:
‘The sentence imposed and whether the state established that the murder was premeditated.
The appeal was dealt with in terms of s 19(a) of the Superior Courts Act 10 of 2013 as
(amended). The parties agreed to the adjudication of the appeal by this Court without hearing
oral argument as provided for under the practice rules of this Court during the National State
of Disaster Regulations of 2020 which are still in operation’.

[2] The appellant and his erstwhile accused (accused 2) were charged and
convicted of murder by the Regional Court (the trial court). The trial court found no
substantial and compelling circumstances and sentenced both to life imprisonment.
The appellant appealed against the conviction and sentence to the full bench of the
high court, which dismissed his appeal. Leave to appeal was granted to this Court on
petition.

[3] The appellant's charge before the trial court was murder, read with the
provisions of s 51(1) of the Criminal Law Amendment Act 105 of 1997 (CLAA), which
prescribed the imposition of life imprisonment. The appellant was appraised of the
applicability of the CLAA as the murder was planned and premeditated or committed
in the execution of a common purpose. The trial court warned the appellant
accordingly.

[4] I briefly set out the following material facts. On 4 March 2012, at about 20h30,
Mr Thabo Letsoalo (Mr Letsoalo) and Mr Nicholas Molepo (Mr Molepo) were with the
deceased at a tavern sitting under a tree drinking liquor. The appellant arrived in the
company of accused 2. The appellant approached the deceased from behind and
hacked him with a panga on his head. He hit him more than once, and the deceased
fell to the ground. Accused 2 joined the assault by hitting the deceased with a weapon
that looked like a steel bar (or a pick-handle) while the deceased was lying on the
ground. They also kicked him. After assaulting the deceased, the appellant and
accused 2 left the scene. An ambulance and the police were called in vain. Mr Thabo
Alfred Sithole (Mr Sithole), the tavern owner, was called to the scene. He found the
deceased lying in a pool of blood. He conveyed the deceased to Mankweng hospital,
where the latter died a few minutes after arrival.

[5] The appellant’s evidence is different from that of both eyewitnesses. The
Appellant denied that he assaulted the deceased, let alone with a panga. He stated
that in the late afternoon he was involved in a scuffle with the deceased when the latter
fell against a fence, injuring his forearm. He testified that he never saw accused 2 on
that day. He only learnt the following day that the deceased had died.

[6] The appellant said that he was at the tavern on the same date, at about 16h00
to 17h00. He sat there for about 35 minutes before other local young men joined him,
and later the deceased. The deceased took an empty crate of beers and went to join
other patrons. The appellant stood up and purchased a ‘long tom of Hansa’ and a
cigarette. When he returned, the chair he was sitting on was not there. He was told
that it was taken by the deceased. He saw the chair, fetched it, and took it to where
he had been sitting. After a while, he again went to buy a cigarette. When he returned,

he found the deceased standing next to where he had sat. The deceased confronted
him about the chair. He told the deceased that he (the appellant) was the first to use
it. They then quarrelled over the use of the chair. The appellant said they were both
drunk at that stage. He said that the deceased pushed him, and they ended up pushing
each other. He testified thus:
‘We put our arms around each other grabbing each other and I tripped him he fell onto the
fence.’
People who were present separated them. He thereafter bought a cigarette and
snacks and left the tavern. He did not return to the tavern that day.

[7] During cross-examination regarding whether the deceased was injured during
this alleged scuffle, he said:
‘The injuries I saw on him I think they would have been caused by the fence and the witness
is indicating to his left forearm’.

[8] The appellant and accused number 2’s evidence was rejected by the trial court
because their ‘evidence was unconvincing and simply did not have the ring of truth
about it. Their version can safely be rejected as false’. The trial court further found that
‘accused’s untruthfulness is a guarantee of the truthfulness of the state witness’. In my
view, the trial court correctly analysed the evidence and cannot be faulted for finding
the appellant guilty of murder. However, it did not say whether the murder was planned
or premeditated in its judgment on conviction. It is only in sentencing the appellant that
the trial court mentioned premeditation for the first time. It said:
‘This is (sic) a premeditated murder. You came to this tavern armed with a panga and an iron
rod or bar. Your purpose was to kill the deceased and that is just what you have done. You
had ample opportunity to restrain yourself. This poor deceased had no chance whatsoever.’

[9] The full court dismissed the appeal. It agreed with the finding by the trial court
in its judgment on sentence that the murder was premeditated. The full court reasoned
that because the appellant went to the tavern armed with a panga, with which he killed
the deceased, he had formed the intention to kill the deceased before going to the
tavern.

[10] The evidence of Mr Letsoalo and Mr Molepo was found to be acceptable and
credible by the trial court. From that, it is ineluctable that the trial court was correct in
convicting the appellant and accused 2 as charged. Although this Court has not had
the benefit of a post-mortem report, the judgment of the full court reflected on the
injuries as follows:
‘The injuries sustained included (sic) 6 x lacerations, a fracture to the coronal suture, fractures
of the left mandibular bone over the front of the middle aspect.’
These are serious injuries which were inflicted on the head and are indicative of the
force used. The cause of death was recorded as ‘blunt force head injuries’.

[11] The issue before this Court is whether the state established that the murder
was premeditated. It is clear that nowhere in the trial court's judgment prior to the
imposition of the sentence was any reference made to planning or premeditation of
the murder by the appellant. The full court did not make any pronouncement on the
issue as well, save to use the trial court's words that the murder was premeditated.
Therefore, it behoves this Court to reflect on the issue and determine whether the
murder was indeed planned or premeditated, as well as the legal significance of the
fact that the issue was not decided by the trial court prior to sentencing. These issues
must be considered by looking at the evidence presented by the two eyewitnesses in
conjunction with the appellant's version.

[12] On the accepted evidence of the two reliable eyewitnesses, the appellant
hacked the deceased from behind with a panga and continued to assault the deceased
while he was lying on the ground. This to me, was a sequel to their prior fight three or
so hours earlier. There is no evidence that he was armed with a panga earlier during
the fight. He left for a few hours and came back armed with a panga and attacked the
deceased with it. The appellant thus had time to think about the attack. The attack did
not occur on the spur of the moment.

[13] It is necessary to point out that not in every instance, that an accused is armed
with a weapon, will it be an indication of premeditation. The Appellant relied on S v

Makatu1 in its submission that there was no premeditation on the part of the Appellant.
In Makatu, the appellant went to the deceased’s office armed with a firearm for which
he had no licence. Paragraph 12 of the judgment captures precisely what occurred
and reads:
‘When the appellant went into the deceased’s office she immediately told him that she was
not interested in him and that he should move out of the house that he was busy renovating
for them. This triggered bad memories of what she had done and said in the past. “It was then
at that spur of the moment that I felt hurt and started shooting at her.” After firing shots at her
the appellant had turned the gun on himself, apparently shooting himself through the chin, the
bullet exiting through his forehead.’

[14] In accepting the appellant’s version in Makatu, the court reasoned as follows:
‘. . . the evidence does not support a finding that the appellant had taken the firearm with the
intention of shooting his wife, nor that he was motivated by the fear of losing her share in the
joint estate. It cannot be said that the State established that his version was not reasonably
true.’2

[15] The appellant's evidence must be evaluated together with the acceptable
evidence of the two eyewitnesses, who undoubtedly knew both him and accused 2.
His evidence that he fought with the deceased earlier that day speaks to the reason
why he came back in the evening and assaulted the deceased without saying a word.
The appellants attack was thus a continuation of the fight that had occurred earlier.

[16] It is trite that a court can accept certain portions of the evidence of a witness as
the truth and reject others. This Court in Rex v Gumede held that:3
‘There may be motives inducing a witness at one stage to tell falsehoods and subsequently to
confess the truth, and it would be arbitrary rashness to hold that the later evidence must
necessarily be rejected.’

[17] Having outlined the above, it is essential to state that a finding of premeditation
requires inferential reasoning. The trier of facts (a presiding officer) has to interrogate

1 S v Makatu 2006 (2) SALR 582 (SCA).
2 Ibid at 588.
3 Rex v Gumede 1949 (3) SA 749 (A) at 755.

the facts of each case and then deduce from them whether the commission of the
offence was premeditated or not. That is partly due to the legislature not having defined
‘planned’ or ‘premeditated’ in the CLAA.

[18] Intrinsic in the question this Court posed, when it granted leave to appeal, is the
issue that seems to continue to perplex presiding officers in criminal trials where
planning or premeditation is alleged by the State. The question arises: must a trial
court determine whether the murder was planned or premeditated at conviction? The
answer lies in what this Court said in Michael Legoa v State4 when it determined
whether at the trial of an accused charged with dealing in dagga, ‘the State is entitled
to prove the value in question after conviction but before sentencing, so as to invoke
the minimum sentences’.  Cameron JA said that the court acquires the jurisdiction in
respect of the minimum sentences legislation ‘only if the evidence regarding all the
elements of the form of the scheduled offence is led before verdict on guilt or
innocence, and the trial court finds that all the elements specified in the Schedule are
present’. Our courts have consistently followed this approach. However, the ultimate
question remains ‘whether the accused had a fair trial under the substantive fairness
protections afforded by the Constitution’.5

[19] A similar question arose in S v Taunyane.6 As in this case, the trial court failed
to mention at the conviction stage that the accused was guilty of planned or pre-
mediated murder. It was only at the sentencing stage that mention was made. The full
court found that such omission constituted a misdirection.

[20] Similarly, I find that the trial court in this matter, misdirected itself in pronouncing
that the murder was premeditated only at the sentencing stage. What remains to be
determined is whether the appellant was prejudiced by such misdirection. In Legoa
this Court found that the Appellant received an unfair trial as a result of the misdirection
by the trial court.

4 Michael Legoa v State [2002] 4 All SA 373; 2003 (1) SACR 13 (SCA) para 1.
5 Ibid para 18.
6 S v Taunyane 2018 (1) SACR 163 (GJ).

[21] The question of whether an accused is prejudiced by the failure of a trial court
to refer to an offence in Part 1 of Schedule 2 varies from case to case. This Court held
in Legoa that such failure would not, in every case, result in an accused being
prejudiced. Whether an accused has been denied a fair trial, as a result, depends on
the facts of each case, as I shall demonstrate below.

[22] Failure to make a pronouncement at the verdict stage as to which of the
provisions of Part 1 of Schedule 2 of Act 51(1) of the CLAA are applicable to the
accused’s conviction constitutes a misdirection in every case it occurs. However, such
failure will not always prejudicially affect the accused to an extent that the accused will
avoid being sentenced to the minimum sentence of life imprisonment. If that were to
be the case, it would result in a miscarriage of justice.

[23] There will undoubtedly be cases where the proved facts compellingly and
ineluctably point to premeditation. In such a case there cannot be any conceivable
prejudice to an accused person if the minimum sentence is imposed despite the fact
that a finding regarding premeditation had not been made prior to conviction. In my
view, this is such a case. The accused was duly warned of the applicability of the
minimum sentencing legislation on the basis of premeditation and, as I have said
previously, the proved facts incontrovertibly established that the murder was
premediated. Accordingly, there can be no conceivable basis on which he can
complain about the fairness of the trial.

[24] To conclude on this aspect, a court of appeal cannot overlook that, despite the
misdirection of a trial court, in failing to make a finding at the verdict stage, that the
murder was planned or premeditated. Justice should not only be done or seen to be
done to the accused, it has to be meted out to the victims and those affected by the
actions of an accused, as well. The court of appeal should rather focus on the
appropriateness of the sentenced imposed. It cannot be that an inappropriate
sentence should be imposed simply because of a misdirection on the part of the
sentencing court, particularly when the accused is not prejudiced

[25] A minimum sentence imposed will stand only if the accused had been properly
apprised in the charge sheet and informed by the court of the relevant provisions of
the CLAA before the trial begins. Furthermore, the state will not be relieved of the duty
to prove planning or premeditation before the verdict. In that event, the accused will
be made aware of which evidence will be led and the kind of sentence likely to be
imposed. That will allow the accused to prepare his defence and cross-examination of
the state witnesses accordingly. This is exactly what happened in this case. It is
accordingly not unjust for the appellant to be sentenced in terms of s 51(1) of the
CLAA.

[26] I have accepted that the appellant returned to the deceased with a clear
intention to kill him. Unlike in Makatu, I have found that the motive behind the
appellant's action was to continue with the fight that had occurred in the late afternoon.
Clearly, under those circumstances, the appellant had premeditated the attack on the
deceased.

[27] Though superfluous in the light of the finding regarding premeditation, I am
satisfied that on the proved evidence, the appellant had also acted in execution of a
common purpose with accused 2.

[28] Having established that the murder was premeditated, I have to determine
whether the trial court erred in respect of the sentence it imposed. The trial court
correctly took into account and balanced the appellant’s personal circumstances, the
seriousness of the offence and the interest of society. The full court found that the trial
court did not err. I agree with that finding.

[29] It is trite that the issue of sentence is predominantly in the discretion of the trial
court. The powers of the appeal court are circumscribed to this extent, and the crux of
the appeal against a sentence is not whether the sentence was right or wrong.7 An
appeal court will thus not interfere with that discretion unless there is a clear
misdirection or the sentence is manifestly disproportionate to the extent that no

7 See S v Pillay [1977] 4 All SA 713 (A); 1977 (4) SA 531 (A) at 535 (E).

reasonable court would have imposed it. In my view, the aggravating circumstances
far outweigh the appellant's personal circumstances, which are not out of the ordinary.
In the circumstances of this matter, the sentence of life imprisonment is appropriate.

[30] Consequently, I make the following order.
The appeal is dismissed.

________________________
M MAKAULA
ACTING JUDGE OF APPEAL

APPEARANCES:

For appellant:

L M Manzini
Instructed by:

Polokwane Local Office Legal Aid SA
Bloemfontein Local Office Legal Aid SA

For respondent:

J J Jacobs
Instructed by:

Director of Public Prosecutions, Polokwane
Director of Public Prosecutions, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
01 April 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this
case and does not form part of the judgments of the Supreme Court of Appeal
Rasimate Samuel Baloyi v The State (739/2021) [2022] ZASCA 35 (01 April 2022)
Today the Supreme Court of Appeal (SCA) handed down a judgment dismissing an appeal against the
Limpopo Division of the High Court, Polokwane (the high court).

The issue before the SCA concerned failure by the trial court to mention whether the murder was
planned or premeditated on conviction, but only during sentencing, which constituted a misdirection.

The appellant and his erstwhile accused (accused 2) were charged and convicted of murder by the
Regional Court (the trial court). The trial court found no substantial and compelling circumstances and
sentenced both to life imprisonment. The appellant appealed against the conviction and sentence to
the full bench of the high court, which dismissed his appeal; hence leave to appeal was granted by the
SCA. This court granted leave on a limited ground whether ‘the sentence imposed and whether the
state established that the matter was premediated.’

The SCA held that the trial court correctly analysed the evidence and cannot be faulted for finding the
appellant guilty of murder. However, the SCA held that the trial court did not say whether the murder
was planned or premeditated in its judgment on conviction. It was only in sentencing the appellant that
the trial court mentioned premeditation for the first time.

In addition, the SCA held that it was clear that there was nowhere in the trial court's judgment prior to
the imposition of the sentence where any reference was made to planning or premeditation of the
murder by the appellant. Consequently, the full court did not make any pronouncement on the issue as
well, suffice to use the trial court's words that the murder was premeditated. As a result, the SCA had
to reflect on the issue and determine whether the murder was indeed planned or premeditated.

The SCA held that the appellant had time to think about the attack. Hence, the attack did not occur on
the spur of the moment. Furthermore, the SCA held that the motive behind the appellant's action was
to continue with the fight he alleged had occurred in the late afternoon. As a result, the SCA found that
under those circumstances, the appellant had premeditated the attack on the deceased. However, the
SCA found that the trial court misdirected itself in pronouncing that the murder was premeditated only
at the sentencing stage. Accordingly, the SCA had to determine whether the appellant was prejudiced
by such misdirection.

The SCA held that failure to make a pronouncement at the verdict stage as to which of the provisions
of Part 1 of Schedule 2 of Act 51(1) was the accused convicted of would certainly constitute a
misdirection in every case it occurs. However, the SCA held that such failure may not in each case
prejudicially affect the accused to an extent where the accused ought to be sentenced to the minimum
sentence of life imprisonment; he/she would escape such a sentence by virtue of such a misdirection.

In addition, the SCA had to also determine whether the trial court erred in respect of the sentence it
imposed on the basis of its finding that there were no substantial and compelling circumstances. The
full court found that the trial court did not err, and the SCA agreed with that finding.

Furthermore, the SCA held that the issue of sentence was predominantly in the discretion of the trial
court. An appeal court would not interfere with that discretion unless there was a clear misdirection
amongst other factors. The SCA found that there was no misdirection. As a consequence, the
aggravating circumstances far outweighed the appellant's personal circumstances, which are not out of
the ordinary. As a result, the SCA found that the sentence of life imprisonment was appropriate.

~~~~ends~~~~