THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  167/12
Not reportable

In the matter between:

AZWIHANGWISI ROBERT MMBOI

FIRST APPELLANT

ANDRIES NDISHAVHELAFHI  MUDAU

SECOND APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Azwihangwisi Mmboi v The State (167/12) [2012] ZASCA
142 (28 September 2012).

Coram:

Mpati P, Ponnan, Mhlantla, Petse JJA and Erasmus AJA
Heard:

6 September 2012
Delivered:

28 September 2012

Summary:
Murder ─ common purpose ─ absence of proof of prior
agreement ─ appellant a passive bystander ─ held, in the absence of
conduct manifesting active association in killing, not liable for murder.
Sentence ─ cumulative effect of sentences ─ concurrence of sentences ─
when appropriate ─ two sentences ordered to run concurrently.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:   Limpopo High Court, Thohoyandou (Makgoba AJ sitting as
court of first instance):

The appeal of the second appellant is allowed to the limited extent that the
sentence imposed on count 2 (robbery) is ordered to run concurrently with the
sentence imposed on count 1 (murder). The second appellant will thus serve an
effective term of twenty years’ imprisonment.
The effective term of twenty years’ imprisonment shall run from
10 November 2004.

________________________________________________________________

JUDGMENT
________________________________________________________________

PETSE JA (Mpati P, Ponnan, Mhlantla JJA and Erasmus AJA concurring):

Introduction
[1] Arising out of an incident which occurred on 21 December 2003 at about
21h00 and at Lwamondo village in the district of Vuwani, Limpopo, the two
appellants (together with a third accused who does not feature in this appeal)
were tried in the Limpopo High Court, Thohoyandou on a charge of murder and
robbery with aggravating circumstances as defined in s 1 of the Criminal
Procedure Act 51 of 1977 (the Act). The indictment explicitly stated that the
provisions of ss 51(1)(a) and 51(2) of the Criminial Law Amendment Act 105 of
1997 (the so-called minimum sentences legislation) applied respectively to the
counts of murder and robbery.

[2] In its summary of substantial facts furnished in terms of s 144(3)(a) of the
Act, the State alleged that the appellants, together with three other cohorts,
planned to rob the deceased. In pursuance of that plan they followed the
deceased after he had left the Bar Lounge, where he had been drinking with
friends and accosted him. The first appellant tripped the deceased who fell to the
ground. Joshua Nematundani who was accused 2 in the court below stabbed the
deceased with a knife whilst demanding money from him, which the deceased
did not have. He then robbed the deceased of his canvass shoes whilst three of
their cohorts kept watch at a short distance from the scene of the robbery to
ensure that their plan was effectively executed.

[3] The appellants were respectively accused numbers 1 and 5 at the trial.
They were initially indicted together with three other persons, namely, Joshua
Nematundani and to whom I shall henceforth refer as Joshua, Eric Dovhani
Todani (accused 3) and Emmanuel Gundo Radzuma (accused 4). Charges were
withdrawn against Todani and Radzuma before the commencement of the trial
and both were subsequently called as State witnesses against the appellants.

[4] The high court convicted the appellants as charged and sentenced them
to twenty years’ imprisonment on the murder count and eighteen years’
imprisonment on the robbery count. These sentences were not ordered to run
concurrently. Thus the effective term of imprisonment in respect of each
appellant is 38 years’ imprisonment.

[5] Subsequently the high court granted the first appellant leave to appeal to
this court against both his conviction and sentences whilst the second appellant
was granted leave to appeal only against his sentences.

[6] The appeal was subsequently heard in this court on 6 September 2012.
After hearing argument by counsel we made an order in terms of which the
appeal of the first appellant was upheld and both his conviction and sentences

set aside. When making that order we indicated that our reasons therefor would
be furnished later. The following are those reasons.

The facts
[7] It is necessary to sketch the circumstances of the commission of the
crimes that led to the prosecution of the appellants in a little more detail.

[8] The State called several witnesses to support its case. Only the evidence
of Todani and Radzuma is relevant for present purposes. Both were accomplices
who were duly warned by the high court in terms of the provisions of s 204 of the
Act. Todani testified that on 21 December 2003 he was at Tshivhumbe Bar
Lounge drinking liquor together with six other persons, two of whom were the
appellants. The second appellant suggested that the deceased be robbed
because he had a lot of money; this he deduced from the fact that the deceased
was drinking expensive liquor. When the Bar Lounge closed at about 21h00, all
of the patrons left, including the deceased who left with three companions.
Todani and his cohorts proceeded to follow the deceased. At a certain spot
Joshua ordered the rest of his companions to stop, saying that he was going to
take money and canvass shoes from the deceased. Joshua accosted the
deceased and struck him with a beer bottle. Subsequently Todani heard the
deceased saying that ‘he [could] kill him because he did not have the money
which he wanted.’ Joshua then called upon the second appellant to lend him a
knife whereupon he stabbed the deceased three times. Todani went on to testify
that at all material times the first appellant was standing next to him together with
Radzuma. After the robbery, Joshua left with the second appellant whilst Todani
left for a different destination together with the first appellant and Radzuma.

[9] Radzuma testified that he was also at Tshivhumbe Bar Lounge together
with the appellants, Todani, Joshua and two other men unknown to him. Joshua
suggested that they ‘should work with’ the deceased which he understood to
mean that the deceased ‘should be assaulted’. When the bar closed, they left as

did the deceased together with the latter’s companions. En-route they saw four
people walking ahead of them. As they closed the gap between them and this
group the first appellant approached the group and assaulted the deceased with
a bottle. The deceased fell to the ground and the first appellant put his foot on the
deceased’s neck. Joshua joined the first appellant and demanded money from
the deceased who said that he had none. Joshua called upon the second
appellant to lend him his knife, who in turn obliged, and Joshua then stabbed the
deceased twice in his upper body. The first appellant then intervened and told
him to stop because the deceased had ‘had enough’, whereafter Joshua
removed the deceased’s canvass shoes. Upon being questioned by the court,
Radzuma said that when he and his companions left the Bar he was not aware
that the deceased would be confronted.

[10] The first appellant also testified in his own defence. It is, however,
unnecessary to analyse his evidence in any great detail. In essence, the first
appellant denied that he was a party to any agreement to rob the deceased. His
evidence coincides, in material respects, with that of Todani more particularly on
the aspect that whilst they were walking together Joshua instructed them to stop,
separated from them and approached the group of four men of which the
deceased was part. He further testified that Joshua came back and borrowed a
knife from the second appellant and, armed with the knife from the latter, Joshua
returned to where the deceased was. Soon thereafter the first appellant heard a
person screaming saying that ‘he did not have money’. After a while Joshua re-
joined them holding a knife in his right hand and a pair of canvass shoes in his
left hand.

[11] The high court concluded, on the strength of the evidence presented
before it, that the guilt of the first appellant was established. In evaluating the
evidence, the high court found that the evidence of Della Mulaudzi (the
deceased’s sister who testified on the condition the deceased was in when he
returned home that fateful night) and Livhuwani Munwada who was with the

deceased when the latter was accosted but ran away, did not advance the
State’s case. It also recognised that the fate of the trial hinged on the evidence of
Todani and Radzuma who were accomplices. It went on to say the following:
‘Then the witness, Radzuma had an opportunity of observing what was the accused 1’s
participation, that he is the person who hit the deceased with a bottle, the person who,
while the deceased had fallen down pressed him down with his leg or his knee and this
witness happens to have been at a distance of about five to six metres away from the
deceased and accused 1.

Hence I say that the two witnesses corroborate each other on material aspects.
They are accomplices, they were at the scene, they know all that happened, especially
the witness, Eric [Todani], who even conceded that he was part and parcel of the whole
plan.’

Discussion
[12] I deal first with the first appellant. It is noteworthy that the indictment
alleged that the first appellant and his cohorts acted in furtherance of a common
purpose. Professor J M Burchell deals with the doctrine of common purpose in
Principles of Criminal Law 3ed (2008) at 574. The learned author states that in
essence the doctrine applies:
‘Where two or more people agree to commit a crime or actively associate in a joint
unlawful enterprise, each will be responsible for the specific criminal conduct committed
by one of their number which falls within their common design.’

[13] It is trite that the State bore the onus of proving the guilt of the first
appellant beyond reasonable doubt. As it was held in S v Van der Meyden 1999
(2) SA 79 (W), which was approved and applied by this court in S v Van
Aswegen 2001 (2) SACR 97 (SCA), an accused is entitled to be acquitted if there
exists a reasonable possibility that he might be innocent. In assessing whether or
not the guilt of the accused has been established this court in S v Hadebe &
others 1998 (1) SACR 422 (SCA) at 426e-h approved of the approach adopted in
Moshephi & others v R (1980-1984) LAC 57 at 59F-H in which the following was

stated:
‘The question for determination is whether, in the light of all the evidence adduced at the
trial, the guilt of the appellants was established beyond reasonable doubt. The breaking
down of a body of evidence into its component parts is obviously a useful aid to a proper
understanding and evaluation of it. But, in doing so, one must guard against a tendency
to focus too intently upon the separate and individual part of what is, after all, a mosaic
of proof. Doubts about one aspect of the evidence led in a trial may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again
together with all the other available evidence. That is not to say that a broad and
indulgent approach is appropriate when evaluating evidence. Far from it. There is no
substitute for a detailed and critical examination of each and every component in a body
of evidence. But, once that has been done, it is necessary to step back a pace and
consider the mosaic as a whole. If that is not done, one may fail to see the wood for the
trees.’

[14] In this case the first appellant was convicted on the basis of the evidence
of the accomplices. It is trite that when one deals with the evidence of an
accomplice it is incumbent upon the trial court to properly evaluate such
evidence. In R v Ncanana 1948 (4) SA 399 (A) at 405, Schreiner JA put it thus:
‘The cautious Court or jury will often properly acquit in the absence of other evidence
connecting the accused with the crime, but no rule of law or practice requires it to do so.
What is required is that the trier of fact should warn himself, . . . , of the special danger of
convicting on the evidence of an accomplice; for an accomplice is not merely a witness
with a possible motive to tell lies about an innocent accused but is such a witness
peculiarly equipped, by reason of his inside knowledge of the crime, to convince the
unwary that his lies are the truth. This special danger is not met by corroboration of the
accomplice in material respects not implicating the accused, . . . The risk that he may be
convicted wrongly although sec 285 has been satisfied will be reduced, . . . if there is
corroboration implicating the accused. . . . [I]t will also be reduced, even in the absence
of these features, if the trier of fact understands the peculiar danger inherent in
accomplice evidence and appreciates that acceptance of the accomplice and rejection of

the accused is, in such circumstances, only permissible where the merits of the former
as a witness and the demerits of the latter are beyond question.’

[15] This theme was taken further by Holmes JA in S v Hlapezula & others
1965 (4) SA 439 (A) at 440D-H where the following appears:
‘It is well settled that the testimony of an accomplice requires particular scrutiny because
of the cumulative effect of the following factors. First, he is a self-confessed criminal.
Second, various considerations may lead him falsely to implicate the accused, for
example, a desire to shield a culprit or, particularly where he has not been sentenced,
the hope of clemency. Third, by reason of his inside knowledge, he has a deceptive
facility for convincing description ─ his only fiction being the substitution of the accused
for the culprit. Accordingly, even where sec. 257 of the Code has been satisfied, there
has grown up a cautionary rule of practice requiring (a) recognition by the trial Court of
the foregoing dangers, and (b) the safeguard of some factor reducing the risk of a wrong
conviction, such as corroboration implicating the accused in the commission of the
offence, or the absence of gainsaying evidence from him, or his mendacity as a witness,
or the implication by the accomplice of someone near and dear to him; see in particular
R v Ncanana, 1948 ( 4) SA 399 (AD) at pp. 405-6; R v Gumede, 1949 (3) SA 749 (A.D)
at p. 758; R v Nqamtweni & another 1959 (1) SA 894 (A.D) at pp 897G-898D.
Satisfaction of the cautionary rule does not necessarily warrant a conviction, for the
ultimate requirement is proof beyond reasonable doubt, and this depends upon an
appraisal of all the evidence and the degree of the safeguard aforementioned.‘

[16] In convicting the appellants the high court based its decision on its finding
that a prior agreement between the appellants and their cohorts had been proved
beyond reasonable doubt by the State. Moreover, the high court accepted the
evidence of Radzuma without reservation and said that:
‘. . . the witness Radzuma had an opportunity of observing what accused 1’s
participation was, that he is the person who hit the deceased with a bottle, the person
who, while the deceased had fallen down pressed him down with his leg or his knee and
this witness happens to have been at a distance of about five or six metres away from
the deceased and accused 1.’

It went on to find that the two accomplices corroborated each other in material
respects. However, a reading of the record reveals that Todani and Radzuma
contradicted each other on the critical aspect of whether the first appellant had
participated in the killing and robbery of the deceased. The State’s case as to the
existence of a prior agreement was entirely unsatisfactory given the inherent
inconsistencies. In my view, therefore, the high court erred in finding that a prior
agreement had been proved.

[17] In S v Mgedezi & others 1989 (1) SA 687 (A) this court said the following
at 705I-706C:
‘In the absence of proof of a prior agreement, accused No 6, who was not shown to have
contributed causally to the killing or wounding of the occupants of room 12, can be held
liable for those events, on the basis of the decision in S v Sefatsa & others 1988 (1) SA
868 (A), only if certain prerequisites are satisfied. In the first place, he must have been
present at the scene where the violence was being committed. Secondly, he must have
been aware of the assault on the inmates of room 12. Thirdly, he must have intended to
make common cause with those who were actually perpetrating the assault. Fourthly, he
must have manifested his sharing of a common purpose with the perpetrators of the
assault by himself performing some act of association with the conduct of others. Fifthly,
he must have had the requisite mens rea; so, in respect of the killing of the deceased, he
must have intended them to be killed, or he must have foreseen the possibility of their
being killed and performed his own act of association with recklessness as to whether or
not death was to ensue.’

[18] In this matter counsel for the State readily conceded in this court that the
existence of a prior agreement had not been proved by the State. Accordingly the
conviction of the first appellant can be sustained only if the five prerequisites for
criminal liability spelt out in Mgedezi are satisfied. On this score the dictum of the
Constitutional Court in Thebus & another v S1 2003 (2) SACR 319 (CC) (para 45)

1 Also reported in 2003 (6) SA 505; 2003 (10) BCLR 1100.

is instructive. The Constitutional Court said the following:
‘A collective approach to determining the actual conduct or active association of an
individual accused has many evidentiary pitfalls. The trial court must seek to determine,
in respect of each accused person, the location, timing, sequence, duration, frequency
and nature of the conduct alleged to constitute sufficient participation or active
association and its relationship, if any, to the criminal result and to all other prerequisites
of guilt. Whether or not active association has been appropriately established will
depend upon the factual context of each case.’

[19] Thus the fate of the trial with respect to the first appellant hinged on the
cogency or otherwise of the evidence. Hence it has been reiterated time and
again that the proper approach in evaluating evidence is to weigh up all the
elements which point to the guilt of the accused as against those which are
indicative of his innocence, taking cognisance of inherent strengths and
weaknesses, probabilities and improbabilities and then decide whether the
scales tilt so heavily in favour of the State as to exclude any reasonable doubt
about the accused’s guilt.

[20] Accordingly, the question arose as to whether there was evidence of
sufficient weight to sustain the conviction of the first appellant. To my mind the
answer must be no. This is so for three principal reasons. First, of the two
accomplices only Radzuma implicated the first appellant. Radzuma was thus a
single witness whose testimony was contradicted on a crucial aspect by Todani
(see eg S v Sauls 1981 (3) SA 172 (A) at 180). Secondly, Radzuma was an
accomplice to whom the cautionary rule applied and thus the question whether or
not the cautionary rule had been satisfied depended upon an appraisal of all the
evidence. The contradictions and inconsistencies inherent in the State’s case
were, in my view, such that the high court ought to have entertained doubt as to
the truthfulness of Radzuma’s testimony. Thirdly, the testimony of the first
appellant should not have been rejected merely because it was found to be
improbable. It could be rejected only if it were found to be so improbable that it

could not reasonably possibly be true (see eg S v Shackell 2001 (4) SA 1 (SCA)
para 30).

[21] Whilst we must accept that the first appellant was present at the scene of
the crime it should be pointed out, however, that on a conspectus of all the
evidence he did not manifest any conduct that could be said to have constituted
active association with the killing of the deceased. On the contrary, his evidence,
which cannot be rejected as false, and which was supported by Todani,
establishes that he was merely a passive bystander. Quite clearly, therefore, his
conviction is unsustainable.

[22] It was therefore for all the foregoing reasons that the appeal of the first
appellant against his conviction was allowed and his conviction and the
sentences were set aside.

[23] I now turn to the appeal of the second appellant against his sentence. As
already mentioned in para 5 above, he was sentenced to twenty years’
imprisonment for murder and eighteen years’ imprisonment for robbery with
aggravating circumstances. Counsel for the second appellant argued in his
written heads of argument that the sentences imposed on the second appellant
were disturbingly inappropriate and that the high court misdirected itself in its
approach to sentence.

[24] At the outset it must be emphasised that the principle that applies with
respect to an appeal against sentence is well-established. It is trite that
sentencing is a matter pre-eminently within the discretion of the trial court and
that a court of appeal will interfere with the exercise of such discretion only on
limited grounds (see eg S v Giannoulis 1975 (4) SA 867 (A) at 868G-H; S v
Kgosimore 1999 (2) SACR 238 (SCA) para 10).

[25] In S v Malgas2 2001 (2) SA 1222 (SCA) this court restated the test in
these terms at para 12:
‘A Court exercising appellate jurisdiction cannot, in the absence of material misdirection
by the trial court, approach the question of sentence as if it were the trial court and then
substitute the sentence arrived at by it simply because it prefers it. To do so would be to
usurp the sentencing discretion of the trial court. Where material misdirection by the trial
court vitiates its exercise of that discretion, the appellate 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 at large. However, even in the absence of material
misdirection, an appellate Court may yet be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity between the sentence of the
trial court and the sentence which the appellate Court would have imposed had it been
the trial court is so marked that it can properly be described as “shocking”, “startling”, or
“disturbingly inappropriate”.’

[26] During his oral address counsel for the second appellant was constrained
to concede that the sentences imposed by the high court, when viewed
individually point to no discernible material misdirection. Nor could it be seriously
contended that these sentences reveal a disparity of such a degree so as to
render them ‘shocking’, ‘startling’ or ‘disturbingly inappropriate’.

[27] To my mind counsel acted wisely in making this concession. It is plain
from the judgments of our courts that crimes involving violence ─ as murder and
robbery do ─ are always viewed in a serious light. Their gravity is, for example,
reflected in a passage from the judgment of the Constitutional Court in S v
Makwanyane & another 1995 (2) SACR 1 (CC) para 117:
‘The need for a strong deterrent to violent crime is an end the validity of which is not
open to question. The State is clearly entitled, indeed obliged, to take action to protect
human life against violation by others. In all societies there are laws which regulate the
behaviour of people and which authorise the imposition of civil or criminal sanctions on

2 Also reported in [2001] 3 All SA 220; 2001 (1) SACR 469.

those who act unlawfully. This is necessary for the preservation and protection of
society. Without law, society cannot exist. Without law, individuals in society have no
rights. The level of violent crime in our country has reached alarming proportions. It
poses a threat to the transition to democracy, and the creation of development
opportunities for all, which are primary goals of the Constitution. The high level of violent
crime is a matter of common knowledge and is amply borne out by the statistics
provided by the Commissioner of Police in his amicus brief. The power of the State to
impose sanctions on those who break the law cannot be doubted. It is of fundamental
importance to the future of our country that respect for the law should be restored, and
that dangerous criminals should be apprehended and dealt with firmly. Nothing in this
judgment should be understood as detracting in any way from that proposition. But the
question is not whether criminals should go free and be allowed to escape the
consequences of their anti-social behaviour. Clearly they should not; and equally clearly
those who engage in violent crime should be met with the full rigour of the law. . . .’

[28] It goes without saying that by their very nature murder and robbery are
extremely serious crimes and the frequency with which they are committed is a
matter of grave concern. Mr Thomu, counsel for the second appellant,
nonetheless persisted in his argument that the high court should have mitigated
the cumulative effect of the two sentences, given the circumstances in which the
crimes for which he was convicted were committed, by directing a concurrence
between the sentences of imprisonment imposed in respect of the murder and
robbery convictions.

[29] On his part, counsel for the State readily conceded that the cumulative
effect of the sentences is such as to justify interference on appeal. In my view, a
cumulative sentence of 38 years’ imprisonment for someone who was 19 years
old when the crimes were committed, a factor acknowledged by the high court, is
undoubtedly a heavy sentence. It suggests that the high court did not sufficiently
consider the cumulative effect of the sentences on the second appellant given
that the elements of the murder count were inextricably bound up with the
elements of the robbery count. Accordingly the appeal of the second appellant

against sentence must succeed albeit only to the limited extent that his
sentences will be ordered to run concurrently.

[30] Before concluding there are two other aspects that require mention. First,
with respect to the first appellant’s application for leave to appeal the high court,
in the course of its judgment, said the following:
‘. . . considering the fact that I have already decided to grant the applicants leave to
appeal in respect of sentences I find it more convenient that I should also consider
granting the first applicant leave to appeal on conviction, regard being had to the fact
that in any event the appeal court is going to read the whole record and decide this case
on appeal on the totality of the evidence.
No inconvenience will be caused whatsoever, and I find that it will be in the interest of
justice that the appeal court be given the opportunity also to hear the first applicant’s
argument in respect of his conviction.’

[31] To my mind the implication of this statement is that the high court did not
consider the proper test for leave to appeal, which is whether there is a
reasonable prospect that ‘another court might come to a different conclusion on
appeal.’ See eg Rex v Baloi 1949 (3) SA 523 (A) at 524; S v Mabena & another
2007 (1) SACR 482 (SCA) at 494e-f.

[32] Moreover, the high court appears to have been entirely oblivious to the
existence of rule 10A(a)(ix) of the rules of this court3 which requires of counsel to
indicate which portions of the record are in their opinion necessary for the
determination of the appeal. It is implicit in this rule that in the context of a
criminal appeal it behoves the high court not to grant leave to appeal against
conviction ─ simply because it is disposed to grant leave to appeal against
sentence ─ where the envisaged appeal against conviction has no reasonable
prospect of success, and is manifestly doomed to fail.

3 The object of this rule was explained in, inter alia, Caterham Car Sales & Coachworks Ltd v
Birkin Cars (Pty) Ltd 1998 (3) SA 938 (A) at 954H.

[33] Secondly, as already pointed out in para 2 above, the indictment explicitly
stated that the State would, upon conviction of the accused, rely on the
provisions of ss 51(1)(a) and 51(2) when it came to sentencing. Accordingly, as
Marais JA made plain in Malgas (para 8) ‘it was no longer business as usual.
First, a court was not to be given a clean slate on which to inscribe whatever
sentence it thought fit. Instead it was required to approach that question
conscious of the fact that the legislature has ordained life imprisonment or the
particular prescribed sentence of imprisonment as the sentence which should
ordinarily be imposed for the commission of the listed crimes in the specified
circumstances. . .’.

[34] It is beyond question in this case that the high court determined sentence
without any regard for the provisions of ss 51(1)(a) and 51(2) of the minimum
sentences legislation despite being statutorily obliged to do so. But the State,
despite its declared intention foreshadowed in the indictment that it would invoke
the provisions of the minimum sentences legislation upon conviction, did not
cross-appeal against sentence on the grounds that the high court should have
heeded the statutory prescripts bearing on sentence evidently because its
attitude, manifested during the hearing of the appeal, was that the second
appellant had, in any event, got his just desserts. Consequently it would be
wrong for this court to now revisit that aspect. Nonetheless the glaring oversight
of the high court in this regard is deprecated.

Order
[35] In the result the following order is made:
The appeal of the second appellant is allowed to the limited extent that the
sentence imposed on count 2 (robbery) is ordered to run concurrently with the
sentence imposed on count 1 (murder). The second appellant will thus serve an
effective term of twenty years’ imprisonment.

The effective term of twenty years’ imprisonment shall run from
10 November 2004.

__________________
X M PETSE
JUDGE OF APPEAL

Appearances:

First appellant:

S O Ravele

Instructed by

S O Ravele Attorneys, Thohoyandou

Naudes, Bloemfontein

Second appellant:
A L Thomu

Instructed by:

Justice Centre, Thohoyandou

Justice Centre, Bloemfontein

Respondent:

A I S Poodhun

Instructed by:

Director of Public Prosecutions, Thohoyandou

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 September 2012
Status:
Immediate

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.

Azwihangwisi Mmboi & another v The State

Today the Supreme Court of Appeal (SCA) upheld an appeal by the first and second
appellants. With regard to the first appellant the SCA granted an order setting aside both
his conviction and sentences whereas the appeal of the second appellant was allowed to a
limited extent in that the sentence imposed on the count of robbery was ordered to run
concurrently with the sentence imposed on the count of murder.

The main issue on appeal was whether there was evidence of sufficient weight to sustain
the conviction of the first appellant and whether in light of all the evidence, the guilt of the
first appellant was proved beyond a reasonable doubt by the State and whether the
sentences imposed were appropriate.

The appellants together with their three accomplices were alleged to have planned to rob
the deceased. In pursuance of that plan the deceased was murdered. It was alleged that
the first appellant had struck the deceased with a bottle after which the second appellant
stabbed the deceased with a knife and demanded money from the deceased which the
deceased did not possess. The second appellant then robbed the deceased of his

canvass shoes whilst the three cohorts kept watch at a short distance. The appellants
were then indicted and the charges against two of the accused were subsequently
withdrawn. These two accused then testified for the State against the appellants. The third
accused did not feature in the appeal before the SCA.
The two appellants were tried in the Limpopo High Court, Thohoyandou on the charges of
murder and robbery with aggravating circumstances. The high court convicted the
appellants on the basis that a prior agreement between the appellants and their
accomplices had been proved beyond a reasonable doubt.
The high court thereafter sentenced them to twenty years’ imprisonment on the count of
murder and eighteen years’ imprisonment on the count of robbery. These sentences were
not ordered to run concurrently and as a result each appellant was sentenced cumulatively
to a period of 38 years’ imprisonment.
On appeal to the SCA, the SCA found that the first appellant was convicted on the basis of
the evidence of the accomplices. The SCA stated that there was insufficient evidence
against the first appellant, to sustain his conviction. The SCA held further that on a
conspectus of all the evidence the first appellant did not manifest any conduct that could
be said to have constituted active association with the killing of the deceased.
With regard to the second appellant; counsel for the second appellant submitted that the
high court should have mitigated the cumulative effect of the two sentences, given the
circumstances in which the crimes, for which he was convicted, were committed, by
directing a concurrence between the sentences of imprisonment imposed in respect of the
murder and robbery convictions.

The SCA held that a cumulative sentence of 38 years’ imprisonment for someone who was
19 years old when the crimes were committed, a factor acknowledged by the high court, is
undoubtedly a heavy sentence. Such sentence implied that the high court did not
sufficiently consider the cumulative effect of the sentences on the second appellant given
that the elements of the murder count were inextricably bound up with the elements of the
robbery count. The SCA, as a result, held that the appeal of the second appellant against
sentence must succeed albeit only to the limited extent that his sentences be ordered to
run concurrently.