THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 191/2019
In the matter between:

MOAMOGOE, OFENTSE LOFENTSE

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Moamogoe v The State (191/2019) [2020] ZASCA 106 (18
September 2020)
Coram:
SALDULKER, MBHA, VAN DER MERWE and SCHIPPERS JJA
and MABINDLA-BOQWANA AJA
Heard:

The parties agreed that the appeal may be disposed of without the
hearing of oral argument in terms of s 19(a) of the Superior Courts Act 10 of 2013.
Delivered:
This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date for hand-down is deemed to be 18 day of
September 2020.
Summary: Criminal law and procedure – appeal against sentence imposed in terms
of a plea and sentence agreement in terms of s 105A of the Criminal Procedure Act 51
of 1977 – whether plea and sentence agreement correctly reflected what had been
agreed – can in the circumstances only properly be challenged in a review application
and not on appeal – appeal dismissed.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Gauteng Local Division of the High Court, Johannesburg (Borchers
J sitting as court of first instance):
The appeal is dismissed.
__________________________________________________________________

JUDGMENT
___________________________________________________________________
Saldulker JA (Mbha, Van Der Merwe and Schippers JJA and Mabindla-Boqwana
AJA concurring):

[1] The appellant, Mr Ofentse Lofentse Moamogoe, was indicted in the Gauteng
Division of the High Court, Johannesburg (the high court) on the following charges: two
counts of robbery with aggravating circumstances (counts 1 and 2), both read with
s 51(2) of the Criminal Law Amendment Act 105 of 1997 (the Act); one count of murder
(count 3), as read with s 51(1) of the Act; one count of unlawful possession of a firearm
(count 4); and one count of unlawful possession of ammunition (count 5).

[2] On 14 November 2011, the appellant entered into a comprehensive plea and
sentence agreement (plea agreement) with the State in terms of s 105A(1) of the
Criminal Procedure Act 51 of 1977 (the CPA).1 The plea agreement recorded, inter

1 Section 105A of the CPA provides as follows:
‘105A. Plea and sentence agreements
(1) (a) A prosecutor authorised thereto in writing by the National Director of Public Prosecutions and an
accused who is legally represented may, before the accused pleads to the charge brought against him
or her, negotiate and enter into an agreement in respect of –
(i)
a plea of guilty by the accused to the offence charged or to an offence of which he or she
may be convicted on the charge; and
(ii)
if the accused is convicted of the offence to which he or she has agreed to plead guilty –
(aa) a just sentence to be imposed by the court; or
(bb) the postponement of the passing of sentence in terms of s 297(1)(a); or
(cc) a just sentence to be imposed by the court, of which the operation of the whole or any
part thereof is to be suspended in terms of s 297(1)(b); and
. . . .
(b) The prosecutor may enter into an agreement contemplated in paragraph (a) –
(i) after consultation with the person charged with the investigation of the case;
(ii) with due regard to at least the –

alia, that the Deputy Director of Public Prosecutions of the high court (the DPP), and
the appellant, who was represented by an attorney and counsel, had negotiated and
entered into the plea agreement, which involved a plea of guilty to be tendered by the
appellant in respect of certain offences of which he may be convicted based on the
charges, as well as the just sentences for such offences to be imposed by the high
court. The plea agreement was signed by the appellant, his counsel and the DPP.

[3] In terms of the plea agreement, the appellant pleaded guilty on counts 2 and 3.
The agreed sentence was recorded as follows:
‘22.1 Counts 2 and 3 are taken together for the purpose of sentence. The [appellant] is
sentenced to 25 years’ imprisonment of which 5 years’ imprisonment is suspended for 5 years
on the following conditions:
22.1.1 That the [appellant] is not found guilty of murder or robbery or any attempt to
commit robbery or murder within the period of suspension; and
22.1.2 That the [appellant] testify as a state witness in the criminal matter of his co-
perpetrators under case number….
22.2 It is agreed that 10 years of the remaining 20 years’ imprisonment will run concurrently
with the 10 years’ imprisonment imposed by the Regional Court, Randburg on 12 July
2011 as is provided for in Section 280(2) of the Criminal Procedure Act, 51 of 1977;
22.3 The effective sentence agreed to is therefore 10 years’ imprisonment.’ (My emphasis.)

[4] The matter came before Borchers J. During the proceedings the appellant was
asked to confirm the terms of the plea agreement, which he did. The transcript of the
court proceedings reads as follows:
‘Court: Mr Moamogoe you have no doubt been through the document which you have just
signed where there were changes is that correct?

(aa) nature of and circumstances relating to the offence;
(bb) personal circumstances of the accused;
(cc) previous convictions of the accused, if any; and
(dd) interests of the community. . . .
. . . .
(6) (a) After the contents of the agreement have been disclosed, the court shall question the accused
to ascertain whether –
(i) he or she confirms the terms of the agreement and the admissions made by him or her in the
agreement;
(ii) with reference to the alleged facts of the case, he or she admits the allegations in the charge
to which he or she has agreed to plead guilty; and
(iii) the agreement was entered into freely and voluntarily in his or her sound and sober senses
and without having been unduly influenced.’

[Appellant]: Yes your lady.
Court: Do you confirm the terms of this agreement and the admissions that you have made in
it?
[Appellant]: Yes M’Lady.
Court: Do you admit the allegations to the charge that you have just had read to you and to
which you pleaded guilty?
[Appellant]: Yes M’Lady.’

[5] Thereafter, Borchers J convicted and sentenced the appellant in accordance
with the terms of the plea agreement as follows:
‘Counts 2 and 3, are taken together for the purposes of sentence. You are sentenced to 25
years’ imprisonment, of which five years’ imprisonment is suspended for five years on the
following conditions:
1. That you are not found guilty of murder or robbery or any attempt to commit murder or
robbery committed within the period of suspension, namely five years; and
2. That you testify as a state witness in the criminal matters in which your co-perpetrators
are to be charged.
I note that it is agreed that ten years of the effective 20 years’ imprisonment will run
concurrently with the ten years’ imprisonment imposed in another matter by the Regional Court
Randburg on 12 July 2011, as provided for in section 280(2) of the Criminal Procedure Act,
and I note further that the effective sentence of imprisonment in this case today is thus one of
ten years’ imprisonment.’ (My emphasis.)

[6] Subsequent to his conviction and sentence, the appellant applied for leave to
appeal against sentence. In his affidavit in support of the application, the appellant
exhibited a clear understanding that he had been sentenced by the high court to ten
years’ imprisonment in addition to the ten year sentence imposed by the regional court.
He declared that the sentence in accordance with the plea agreement was as follows:
‘Counts 2 and 3 were taken together for the purpose of sentence. I was sentenced to 25 years[’]
imprisonment of which 5 years were suspended.
I had been previous[ly] sentenced to 10 years on another matter. 10 years from the 20 years
was ordered to run concurrently with the previous 10 year sentence.
My effective sentence was therefore 10 years[’] imprisonment. (The Plea Agreement is
annexed to the application).’

He continued to say that ‘the 20 years I was given was too harsh and induces a sense
of shock.’ He submitted that a sentence of ten years’ imprisonment that runs
concurrently with the regional court sentence would be just.

[7] On 24 August 2017, Du Plessis AJ heard and dismissed the application.
Aggrieved, the appellant successfully petitioned this Court for special leave to appeal
against the sentence.

[8] In his affidavit in support of the application for special leave to appeal to this
Court, the appellant changed tack. He alleged, for the first time, that the plea
agreement did not accurately reflect the verbal agreement between him and the State.
Both the application and the written argument before us were limited to this point. The
affidavit stated inter alia, the following:
‘Plea agreement negotiations
7.1 The [appellant] was legally represented during the 105A plea negotiations.
7.2 . . .
7.3 The Sentence was explained as follows to the [appellant] first by Legal Counsel and then
in person by the Prosecution:
7.3.1 He would receive a 25 year sentence for the two counts he plead guilty to as per the plea
agreement.
7.3.3 That the sentence would be structured in such a way that 15 years of the 25 years would
be suspended and the 10 years remaining would run concurrently with a previous sentence of
10 years. Meaning that the [appellant’s] total direct imprisonment for the current matter and
the previous matter would be 10 years imprisonment.
7.3.4 The Prosecution specifically even told him that based on the agreement he would be
[eligible] for parole in 2016.

What brought about this appeal?
7.1 The [appellant] laboured under the impression that he had been sentenced as was verbally
explained to him during the plea negotiations. He did not understand the legal wording on the
105A plea agreement.
7.2 It was only when he inquired with the prison authorities about his parole date that he was
shocked to learn that his sentence was actually 10 years direct imprisonment, plus 10 years
for a previous case. Meaning that he had an effective sentence of 20 years.

7.3 This meant that what the [appellant] was specifically verbally told in the plea agreement
negotiations was different from what was eventually put down on the 105A plea agreement
placed before the court.

Proof that the 105A plea agreement [was] an error and did not represent the oral
agreement during the plea negotiations.
9.1 Firstly the [appellant] was specifically told in person by the prosecution that the effect of
105A plea agreement would be that the 10 years from this case and the 10 years from my
previous case would run concurrently. Meaning that my effective total sentence would be 10
years. The prosecution further told me that I would be [eligible] for parole in 2016. This version
was not contested by the Respondent during the leave to appeal application.
9.2 Secondly, during the appeal hearing the Honourable Justice Du Plessis, questioned the
Prosecution. (The same prosecutor who conducted the plea negotiations and represented the
State during the trial was present at the leave to appeal application).
9.2.1 The prosecution during these questions indicated that they were also under
the impression that the sentences ran concurrently and that the [appellant]
was to serve a total of 10 years’ direct imprisonment for both cases.’

[9] The fundamental question is whether the issue thus raised by the appellant can
be dealt with in this appeal or whether the appellant should have brought a review
application. In my view, for the reasons that follow, this question must be answered in
the negative.

[10] The terms of the plea agreement are clear and were confirmed by the appellant
before Borchers J. What the appellant sought to raise in this Court, namely that the
plea agreement did not correctly record what had been agreed in respect of sentence,
is a matter extraneous to the record. It is trite that an appeal is decided on the record
of the proceedings in the lower court. In the absence of an application to adduce further
evidence on appeal, this Court is bound by the record. The only possible remedy for
the appellant would have been to launch an application for review, setting out these
allegations on affidavit, so that the State could have dealt with them under oath. Even

though, prima facie, the belated allegations of the appellant appear to be tenuous, this
Court should not deal with them on appeal.2

[11] It is, therefore, not possible for this Court to deal with the issue raised by the
appellant on appeal, and for these reasons the appeal must be dismissed.

[13] I accordingly make the following order:
The appeal is dismissed.

___________________
H K SALDULKER
JUDGE OF APPEAL

2 There is authority for the proposition that a plea and sentence agreement under s 105A of the CPA
excludes an appeal. In S v De Koker 2010 (2) SACR 196 (WCC) it was held that the process under
s 105A settles the lis between the State and the accused once and for all. However, a contrary view
was taken in S v Armugga and Others 2005 (2) SACR 259 (N).  It is however inappropriate to decide
this issue without the benefit of oral argument and we refrain from doing so.

APPEARANCES
For appellant:
W A Karam
Instructed by:
Legal Aid SA, Johannesburg

Legal Aid SA, Bloemfontein

For respondent:
L Ngodwana
Instructed by:
Director of Public Prosecutions, Johannesburg

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

18 September 2020
STATUS

Immediate
Moamogoe
v
The
State
(Case
no.
191/2019)
[2020] ZASCA
(18 September 2020)
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.
Today the Supreme Court of Appeal (the SCA) dismissed the appeal of the appellant against
the decision of the Gauteng Division of the High Court, Johannesburg (the high court).
The appellant, Mr Ofentse Lofentse Moamogoe, was indicted in the high court on the following
charges: two counts of robbery with aggravating circumstances (counts 1 and 2); one count
of murder (count 3); one count of unlawful possession of a firearm (count 4); and one count of
unlawful possession of ammunition (count 5). The appellant entered into a plea and sentence
agreement (plea agreement) with the State in terms of s 105A(1) of the Criminal Procedure
Act 51 of 1977. In the plea agreement, the appellant agreed to plead guilty on counts 2 and 3.
The plea agreement recorded that the appellant agreed to be sentenced to 25 years’
imprisonment of which 5 years was suspended on certain conditions. The plea agreement
also recorded that 10 years of the remaining 20 years’ imprisonment would run concurrently
with the 10 years’ imprisonment imposed on another sentence for which the appellant was
imprisoned. It recorded that the agreed effective sentence was 10 years’ imprisonment.
In the high court, the appellant confirmed the terms of the plea agreement, and was duly
convicted and sentenced in accordance thereof. Subsequent to his conviction and sentence,
the appellant applied for leave to appeal against his sentence in the high court, which was
dismissed. The appellant successfully petitioned the SCA for special leave to appeal against
sentence, and in his affidavit in support thereof, the appellant alleged, for the first time, that
the plea agreement did not accurately reflect the verbal agreement between him and the State.
The SCA held that the question was whether the issue raised by the appellant could be dealt
with in the appeal or whether the appellant should have brought a review application. The SCA
held that the terms of the plea agreement were clear and were confirmed by the appellant in
the high court. It also held that the appellant’s allegation that the plea agreement did not
correctly record what had been agreed in respect of sentence, was a matter extraneous to the
record. It held that it was trite that an appeal is decided on the record of the proceedings in
the lower court. In the absence of an application to adduce further evidence on appeal, the
SCA held that it was bound by the record. The SCA held that the only possible remedy for the
appellant would have been to launch an application for review setting out the allegations on
affidavit, so that the State could have dealt with them under oath. It was therefore not possible

for the appeal court to deal with the issue raised by the appellant on appeal. The appeal was
accordingly dismissed.