THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 438/2015

Not Reportable

In the matter between:

SITHEMBISO RONALD NGCULU

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Ngculu v The State (438/15) [2015] ZASCA 184 (30
November 2015)

Coram:
Bosielo, Zondi, Mathopo JJA and Van der Merwe, Baartman AJJA

Heard:
18 November 2015

Delivered: 30 November 2015

Summary: Criminal appeal against conviction on murder and assault with
intent to cause grievous bodily harm – sentenced to life imprisonment in respect
of murder and 3 years’ imprisonment in respect of assault with intent to cause
grievous bodily harm – single witness – adequacy of the evidence – fair trial –
sentence of life imprisonment disturbingly inappropriate.

ORDER

On appeal from: Limpopo High Court, Thohoyandou (Makhafola J sitting as
court of first instance).

a) The appeal against convictions is dismissed.
b) The appeal against the sentence imposed succeeds partially and to the
following extent:
‘The sentence of life imprisonment in respect of murder is set aside and
replaced with a sentence of 20 years’ imprisonment. The sentence of 3 years’
imprisonment in respect of the assault with intent to cause grievous bodily harm
is confirmed. In terms of s 280 of the Criminal Procedure Act 51 of 1977, the
sentence of 3 years’ imprisonment is ordered to run concurrently with the
sentence of 20 years’ imprisonment in respect of murder.’
c) The sentence is antedated to 22 September 2011.

________________________________________________________________

JUDGMENT
________________________________________________________________

Bosielo JA (Zondi, Mathopo JJA and Van der Merwe, Baartman AJJA
concurring)

[1] The appellant who was accused 6, stood trial together with six others in
the Limpopo High Court, Thohoyandou on a number of counts. He was
ultimately convicted on the counts of murder and assault with intent to do
grievous bodily harm. He was sentenced to imprisonment for life in respect of
murder and 3 years’ imprisonment for assault with intent to cause grievous
bodily harm. The appellant’s application for leave to appeal against his

conviction and sentence was refused by the court below. The appeal before us is
with the leave of this Court.

[2] The state called several witnesses. The appellant’s conviction is
predicated on the medical evidence by Dr NT Mutshembele and the evidence of
a complainant who survived the assault, Tshifaro Funanani (Funanani).
According to Funanani, he was accosted by the former accused 5 whilst at a bar
lounge in the village. He was accused of having stolen some cables at accused
2’s mill. He was forcibly taken to accused 2’s mill where he was assaulted by
accused 1 and 3 with a cable. They were saying ‘he, the complainant, knows
and he will talk’.

[3] In no time, the deceased was brought in by accused 1, 2, 3, 5, 6 and 7.
Accused 3 and 7 started to assault the deceased all over his body with pieces of
cables. Accused 3 and 7 then took cables and started to assault the deceased all
over his body. Both the deceased and Funanani were then shocked with electric
wires by accused 1 and 7. All seven accused continued to assault them. Later,
they were hung upside down from the rafters. Funanani testified that as he was
escaping he saw the deceased lying on the ground whilst accused 2 was standing
next to him. He was later separated from the deceased. He saw the deceased
walking with great difficulty whilst being taken to another room. Accused 7 was
physically supporting and helping him to walk. According to Funanani all the
accused including the appellant assaulted him and the deceased. He later
consulted with Dr Mutshembele who treated him for the injuries he had
sustained from the assault. According to Funanani, the accused were drinking
intoxicating liquor whilst assaulting them.

[4] Dr Mutshembele testified and elaborated on multiple soft tissue injuries
which he observed on Funanani during his medical examination. His
professional opinion is that ‘these injuries were consistent with the injuries that
were caused by a blunt object’.

[5] I pause to state that the appellant made formal admissions in terms of
s 220 of the Criminal Procedure Act 51 of 1977 (CPA) where he admitted
having ‘kicked Tshifaro [the deceased] in order to induce him to disclose
information pertaining to his involvement in the theft of electric cables around
Tshisaulu area’. The appellant did not testify in his defence but testified in
mitigation of sentence.

[6] Before us, the appellant’s counsel’s main attack against the judgment of
the court below was that the appellant did not get a fair trial. This was premised
on the fact that all seven accused were represented by one counsel. The
contention is that their common counsel was conflicted as accused 2 in
particular implicated the appellant during his testimony. It was contended
further that the appellant was unfairly denied the right to testify due to this
conflict of interest. This resulted in the appellant’s version not being put before
the court below, so the contention went.

[7] On the other hand, the respondent’s counsel supported the convictions as
being unassailable. He contended that the state’s evidence was clear and
overwhelming. Furthermore, he submitted that the appellant placed himself at
the scene of crime and further admitted participating in the assault on the
deceased. Based on this, he contended that the appellant’s failure to testify to
dispute the state’s version was fatal to his case. Regarding the appellant’s role,
he submitted that by being at the crime scene and participating in the assault,

irrespective the role he played, he associated himself with the entire assault, and
thus made himself guilty by common purpose.

[8] As I indicated earlier, the appellant’s main contention is that he did not
receive a fair trial on the basis that all seven accused were represented by one
counsel. The appellant contends that this made it very difficult for the same
counsel to effectively cross-examine accused 2 who implicated him. A second
string to his bow was the contention that the appellant was ill-advised by his
counsel not to testify in his defence. As a result, his version was never put
before the court below, resulting in an unfair trial.

[9] The record does not bear out these complaints. It is correct that Mr
Mushasha represented all the accused. As he was on a private and not on a
Legal Aid Board brief, it follows that he was counsel of choice by the accused.
This is in line with s 35(3) (f) of the Constitution which states that ‘every
accused person has a right to a fair trial, which includes the right to choose, and
be represented by a legal practitioner.’ Once an accused person has chosen his
or her legal representative, he or she enters into what is called a lawyer-client
relationship. This relationship is unique. It requires the lawyer to receive full
and clear instructions from his or her client which include the client telling the
lawyer the truth about what his or her case is. Whatever the client discloses to
the lawyer is privileged and can only be disclosed with the client’s consent. No
person, including the court can insist on such lawyer-client confidential
discussions being disclosed. This will enable the lawyer to determine and advise
the client accordingly.

[10] Ordinarily, in the course of consultation, both the lawyer and the client
will discuss and agree on the strategy to be adopted during the trial. Once this
has happened, the conduct of the trial is left in the hands of the lawyer, who

presumably will act on the client’s mandate. Should the lawyer either ignore or
go beyond or even against the client’s mandate, the client is free to take
remedial actions which he or she may find appropriate, which may include
correcting the lawyer or at worst, terminating the lawyer’s mandate. Because of
the confidentiality of the consultations between the lawyer and the client, a
court will not know if and when the lawyer is not acting in accordance with the
mandate. It is the accused who will know. A court will only know if an accused
brings it to its attention. Even then a court has very limited powers to intervene,
save where it is clear that an injustice is happening to the accused. There was
absolutely no indication in this case that the appellant was not satisfied with the
manner in which Mr Mushasha conducted his trial. In fact all evidence points to
the contrary.

[11] In this matter, Mr Mushasha received instructions from the appellant. He
executed his mandate. Throughout the trial, the appellant never complained
about how he conducted the trial. As part of their strategy they had agreed with
him that only accused 2 would testify. Mr Mushasha explained the strategy and
the rationale behind it to all the accused including the appellant. They all
accepted his advice. It follows that they made an informed decision. Ordinarily,
no court can circumvent   this and interrogate the accused about the wisdom of
his or her choice. I venture to say that a court can do this in exceptional
circumstances. Such as where the lawyer is patently incompetent and there is a
real indication that the decision is ill-considered and might result in a failure of
justice. Fortunately, that is not the case in this matter. In this case, the appellant
was satisfied with the manner in which Mr Mushasha conducted the trial. This
is demonstrated by the fact that even after he withdrew from the case due to lack
of funds, the appellant and the other accused raised money and reinstated him.
Why is the appellant complaining now? This is clearly the case where an
accused person is satisfied with the strategy adopted by his or her lawyer. Once

the strategy has backfired as it did here, such an accused cannot be allowed to
try to avoid the unpleasant results of the trial by imputing the blame to his or her
lawyer. This is an age-old trick often adopted by disgruntled accused. Such a
stratagem can never be allowed to undermine the administration of justice by
setting aside convictions which are proper. It follows that this ground has no
merit.

[12] I am fortified in this finding by two important events which occurred
during the trial and which undermine the appellant’s complaint about his
counsel. Firstly, on 15 March 2010, some time before the trial started, Mann AJ
asked Mr Mushasha, who appeared for all seven accused if there is no conflict
amongst any of the seven accused which may necessitate the obtaining of the
services of another counsel to represent some of the accused. He responded and
assured the court that there is no such conflict. Notably, none of the accused,
including the appellant raised any objection to this. Secondly, during the trial
Mr Mushasha withdrew from defending all the accused due to lack of funds.
The accused requested the court to grant them a postponement to enable them to
raise funds as they preferred to retain Mr Mushasha as their counsel. Suffice to
state that after they had resolved their financial difficulties, Mr Mushasha was
placed on brief to continue defending all seven of them, including the appellant.
Why would they have him reinstated if they were not satisfied with how he
conducted their defence? Thirdly, the record shows that at the end of the cross-
examination of the state witnesses, Mr Mushasha would, with the court’s leave,
approach all seven accused to verify if he had covered all relevant aspects of the
case in his cross-examination. None of the seven accused, including the
appellant ever indicated their dissatisfaction with the manner in which Mr
Mushasha cross-examined the state witnesses. The facts of this case show
indubitably that the appellant was either satisfied with the manner in which Mr

Mushasha conducted his trial or acquiesced therein. S v Louw 1990 (3) SA 116
(AD).

[13] It is worth noting that the appellant is not illiterate or unsophisticated. At
the time of the trial, he was busy with his thesis research for his honours degree
on microbiology at the University of Venda (Univen). This would qualify him
for MSc (Master of Science). It is not the appellant’s case that he did not follow
the court proceedings. With his level of education, it is unthinkable that he did
not appreciate the importance of the decisions which he took regarding his
choice of counsel. It is axiomatic that counsel acts on instructions from his or
her client and never on his own. Based on this, I accept that whatever Mr
Mushasha did, he did it with the informed consent of the appellant. This
explains why throughout the trial the appellant never complained to the court
regarding any decision which Mr Mushasha took. The truth is that whatever
strategy Mr Mushasha opted for was discussed and agreed upon with all the
accused, including the appellant. This case is different from what happened in S
v Majola 1982 (1) SA 125 (A) where the appellant had expressed disagreement
with the conduct of his case by his counsel during the trial. Faced with a similar
problem, this Court held in R v Matonsi 1958 (2) SA 450 (AD) at 457F that
‘since the appellant took no steps to withdraw his counsel’s mandate and
expressed no disagreement with the conduct of his case until after the verdict
had been given the trial was regular and the correctness of the verdict cannot be
challenged on appeal to this Court’. It suffices to state that by parity of
reasoning this appeal must suffer the same fate.

[14] I now turn to deal with the appeal against the sentence. The appellant’s
counsel submitted that, although the assault was brutal, concerted, prolonged
and perpetrated by a group of men, it was not so serious as to call for life
imprisonment. However, he conceded correctly in my view that, having taken

all the circumstances into account, a sentence of 20 years’ imprisonment in
respect of murder would be appropriate as it would punish the appellant
appropriately whilst reflecting the gravity and seriousness of the offence,
particularly as this amounted to self-help. He did not attack the 3 years’
imprisonment imposed for the assault with intent to do grievous bodily harm.

[15] The court below sentenced the appellant in terms of the Criminal Law
Amendment Act 105 of 1997. This is notwithstanding the fact that neither in the
indictment nor at any stage during the trial, was any mention made of the state’s
desire to invoke the minimum sentence prescribed in the Act. Such a step is
improper and impermissible as the appellant had not been pre-warned of the
applicability of the minimum sentence regime. See S v Ndlovu (75/2002) [2002]
ZASCA 144; 2003 (1) SACR 331 (SCA); S v Legoa (33/2002) [2002] ZASCA
122; 2003 (1) SACR 13 (SCA); S v Makatu (245/05) [2006] ZASCA 72; 2006
(2) SACR 582 (SCA).

[16] Given the peculiar circumstances of this case, I find a sentence of
imprisonment for life imposed on the appellant shockingly inappropriate.
However, it cannot be gainsaid that the appellant made himself guilty of a
serious offence. Any offence which involves a deliberate infliction of harm to
another is serious. It is a violation of his or her right to his or her dignity and
physical integrity. What makes it even more serious is that it was perpetrated by
a group who assaulted the appellant and the deceased randomly. They used an
electric cable which in itself can inflict serious injuries. The assault was
prolonged, indiscriminate, brutal and barbaric. The medical report shows that
the deceased died of serious injuries to his body, whilst Funanani suffered
serious injuries all over his body.

[17] The reason advanced for this wanton assault on the deceased and
Funanani is that accused 2 had suffered theft of his cables at his mill. The
deceased and Funanani were the suspects. It is clear that accused 2 was
aggrieved and angry because of the loss he had suffered. His co-accused
including the appellant were merely assisting him to investigate the theft and
apprehend the culprits. However, their biggest mistake is that once they found
them, they did not take them to the police station to allow the criminal justice
system to take its course. They attempted to turn themselves into police officers,
prosecutors and a court. In simple terms, they took the law into their own hands.
Needless to state that we are living in a constitutional democracy underpinned
by the rule of law and the principle of legality. Section 34 of the Constitution
guarantees everybody the right of access to justice. Citizens must learn to
respect and abide by the law. It is reprehensible for the appellant and his co-
accused to have taken the law into their own hands. Our constitutional
architecture has no room for self-help. See Lesapo v North West Agricultural
Bank & another (CCT 23/99) [1999] ZACC 16; 2000 (1) SA 409 (CC); (1999
(12) BCLR 1420).

[18] The offences for which the appellant has been convicted call for a severe
sentence. Both counsel for the appellant and the state suggested a sentence of 20
years’ imprisonment as being balanced and appropriate. I agree. I think that a
sentence of imprisonment for 20 years’ although not necessarily destroying the
appellant, will punish him effectively and, importantly will cater for society’s
outrage at such conduct, lest we create the impression, unwittingly that owners
whose property has been stolen may take the law into their own hands with
impunity. This will be a fertile ground for vigilantism to thrive – a recipe for
lawlessness.

[19] On the other hand, I do not think that the sentence of 3 years
imprisonment for assault with intent to cause grievous bodily harm on
Funanani, is shockingly inappropriate. None of the counsel argued to that effect.
However, sight cannot be lost of the fact that essentially the two crimes
constitute one continuous act committed at the same place, same time, by the
same accused and for the same reason. Although it is correct to punish him
separately for the two offences, the cumulative sentence of 23 years’
imprisonment induces a sense of shock. Justice requires that it be tempered. I
think that the severity of the sentence can be ameliorated by ordering the
sentence of 3 years’ imprisonment to run concurrently with the 20 years’
imprisonment imposed for murder in terms of s 280 of the CPA.

[20] In the result, the following order is made:
a) The appeal against convictions is dismissed.
b) The appeal against the sentence imposed succeeds partially and to the
following extent:
‘The sentence of life imprisonment in respect of murder is set aside and
replaced with a sentence of 20 years’ imprisonment. The sentence of 3 years’
imprisonment in respect of the assault with intent to cause grievous bodily harm
is confirmed. In terms of s 280 of the Criminal Procedure Act 51 of 1977, the
sentence of 3 years’ imprisonment is ordered to run concurrently with the
sentence of 20 years’ imprisonment in respect of murder.’
c) The sentence is antedated to 22 September 2011.

____________
L O Bosielo
Judge of Appeal

APPEARANCES:

For Appellant:

LM Manzini

Instructed by:

Legal Aid South Africa, Polokwane

Legal Aid South Africa, Bloemfontein

For Respondent:

A Madzhuta

Instructed by:

Director Public Prosecutions, Thohoyandou

Director 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

30 November 2015

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.

NGCULU V THE STATE (438/15) [2015] ZASCA 184 (30 NOVEMBER 2015)

[1] Today the SCA dismissed the appeal against the appellant’s conviction on murder and
assault with intent to cause grievous bodily harm.

[2] The appellant’s main contention was that he did not receive a fair trial. This contention was
premised on the fact all the six accused persons who were charged with him, including
himself were represented by one counsel. The nub of his submission is that his counsel
committed two fundamental irregularities. Firstly, he continued to defend him even when he
knew that there was a conflict interest with accused 2 which made it difficult for him to cross-
examine him effectively. Secondly, that he closed the appellant’s case without allowing him to
testify and put his version before the trial court.

[3] The SCA dismissed both grounds as unmeritorious. This is because the SCA found that
the appellant had chosen and instructed his own counsel and that he never expressed any
dissatisfaction with the manner in which his counsel conducted the trial. To the contrary, the
SCA found that, throughout the trial, he was satisfied with his counsel’s performance to the
extent that even after their counsel withdrew due to lack of funds, he together with his six co-
accused raised funds and had their counsel reinstated to continue defending them. The SCA
found that he knowingly and freely allowed his counsel to continue with his defence,
alternatively that he acquiesced therein. Regarding the merits, the SCA found that the state
had proved its case against the appellant based on common purpose beyond reasonable
doubt. Consequently, the appeal against the convictions was dismissed.

[4] Regarding the sentence, the SCA found, notwithstanding that this was an assault by a
group which endured over a long period, that the court below erred by sentencing the
appellant to life for murder in terms of s 51(1) of the Criminal Law Amendment Act 105 of
1997. The SCA found that the minimum sentence regime was not applicable as the appellant
was never informed of its applicability either at the beginning of the trial or even during the
trial. The SCA held that the sentence of life was in the circumstances inappropriate.
Consequently, it set it aside and replaced it with imprisonment for 20 years. Regarding the 3
years’ imprisonment for assault with intent to cause grievous bodily harm, the SCA found the
sentence to be appropriate.

[6] In the result, the appeal against the convictions was dismissed. The appeal against
sentence succeeded partly to the extent that the sentence of imprisonment for life in respect
of murder was set aside and replaced with imprisonment for 20 years whilst the sentence of 3
years’ imprisonment for assault with intent to cause grievous bodily harm was confirmed. To
ameliorate the severity of the cumulative sentence, the SCA ordered the 3 years’
imprisonment for assault with intent to cause grievous bodily harm to run concurrently with 20
years’ sentence for murder. The sentence was antedated to 22 September 2011.

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