THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case no: 852/2020

In the matter between:

NOXOLO VICTORIA NONGOGO
APPELLANT

and

THE STATE
RESPONDENT

Neutral Citation: Nongogo v The State (Case no 852/20) [2021] ZASCA
166 (03 December 2021)
Coram: SALDULKER ADP and MOCUMIE, MOKGOHLOA,
NICHOLLS and GORVEN JJA
Heard:
12 November 2021
Delivered:  This judgment was handed down electronically by circulation
to the parties’ legal representatives by email, publication on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be have been at 09h45 on 03 December 2021.
Summary:
Criminal law and procedure – conviction of murder and
conspiracy to commit murder – whether the court a quo erred in convicting
the appellant on both conspiracy to commit murder as well as murder –
special entry – whether an irregularity had been committed in ordering the
trial to start de novo before another judge.

___________________________________________________________
ORDER
___________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Mthatha (Mjali
J, sitting as court of first instance):
1 The appeal succeeds to the extent that the conviction and sentence on
conspiracy to commit murder is set aside.
2 Save for the aforegoing, the appeal is dismissed.
3 The conviction and sentence on the count of murder are confirmed.

___________________________________________________________
JUDGMENT
___________________________________________________________

Nicholls JA (Saldulker ADP and Mocumie, Mokgohloa and Gorven
JJA concurring)

[1] The appellant, 44 years old at the time, was found guilty on two
counts in the Eastern Cape Division of the High Court, Mthatha
(per Mjali J) in 2013. The first was murder and the other conspiracy to
murder her husband. For the purposes of sentencing both counts were taken
together and she was sentenced to life imprisonment in terms of the
minimum sentencing provisions embodied in s 51(1) of the Criminal Law
Amendment Act 105 of 1997.

[2] The appellant applied for leave to appeal against conviction and
sentence. Leave to this Court was granted by the high court on two aspects,
namely ‘on the strength of the special entry that was entered during the

trial’ and whether the conviction on both the counts of murder and
conspiracy to commit murder amounted to a duplication of convictions.

[3] The State has conceded that the appellant should have been
convicted of either murder or conspiracy to commit murder, but not both.
This was explained in S v Fraser:1
‘Normally, where a person conspires with another to commit a crime and the crime in
question is committed, then the conspirator is liable for the crime itself and should be
so charged: See Burchell South African Criminal Law and Procedure vol 1 General
Principles of Criminal Law 3rd ed at 367 and cf R v Milne and Erleigh (7) 1951 (1) SA
791 (A) at 823G.’
This concession is well made and therefore the appeal on duplication of
convictions must succeed.2 All that remains for consideration is the special
entry.

[4] Section 317 of the Criminal Procedure Act 51 of 1977 (the Act)
provides that:
‘(1) If an accused is of the view that any of the proceedings in connection with or during
his or her trial before a High Court are irregular or not according to law, he or she may,
either during his or her trial or within a period of 14 days after his or her conviction or
within such extended period as may upon application (in this section referred to as an
application for condonation) on good cause be allowed, apply for a special entry to be
made on the record (in this section referred to as an application for a special entry)
stating in what respect the proceedings are alleged to be irregular or not according to
law, and such a special entry shall, upon such application for a special entry, be made
unless the court to which or the judge to whom the application for special entry is made
is of the opinion that the application is not made bona fide, or that it is frivolous or
absurd or the granting of the application would be an abuse of the process of the court.’

1 S v Fraser 2005 (1) SACR 455 (SCA) para 7.
2 S v Whitehead and Others [2007] ZASCA 171; 2008 (1) SACR 431 (SCA) para 33.

[5] During the course of the trial the court a quo entered a special entry
on the basis of the following facts. The appellant was initially charged
together with one Temba Tsekemane (Mr Tsekemane) for the murder of
her husband before Griffiths J in the high court. Both pleaded not guilty.
After 12 state witnesses had been led, Mr Tsekemane changed his plea to
one of guilty, which plea was accepted by the State. This prompted
Griffiths J, at the instance of the State, to grant a separation of trials in
terms of s 157 (2) of the Act. The trial of the appellant was ordered to
commence de novo. Mr Tsekemane was found guilty of murder, and
acquitted on conspiracy to murder. He was sentenced to 20 years’
imprisonment.

[6] Pursuant to the order of Griffiths J, the trial of the appellant
commenced before Mjali J. During the cross-examination of
Mr Tsekemane it came to light that he had previously been charged
together with the appellant for the same offences. Both parties were
instructed to address the court on whether the fact that the appellant was
being charged for the same offence but before a different judge amounted
to an irregularity. The court a quo then made a ruling that a special entry
be entered in the record.

[7] The wording of the special entry is lengthy but the crux of the special
entry is the following:
(a)
Whether it was permissible for Griffiths J to have ordered a
separation of the trials of Mr Tsekemane and the appellant at such a late
stage of the proceedings;
(b)
whether it was irregular to have ordered that the trial of the appellant
commence de novo before another judge when there was no order
nullifying the trial before Griffiths J;

(c)
whether Mr Tsekemane could be called as a state witness in the trial
of the appellant in the court a quo;
(d)
whether the appellant’s fair trial rights had been violated by the
unreasonable delay in finalising her matter; and
(e)
whether the appellant had been tried twice for the same offence.

[8] After the special entry had been entered the trial proceeded before
Mjali J who duly convicted the appellant of both murder and conspiracy to
murder and sentenced her to life imprisonment.

[9] In order to determine whether any irregularity has occurred it is
necessary to have regard to s 157 (2) of the Act which provides:
‘(1). . .
(2) Where two or more persons are charged jointly, whether with the same offence or
with different offences, the court may at any time during the trial, upon the application
of the prosecutor or any of the accused, direct that the trial of any one or more of the
accused shall be held separately from the trial of the other accused, and the court may
abstain from giving judgment in respect of any of such accused.’

[10] The main test in deciding whether to grant an application for
separation is whether there will be prejudice to the accused. In R v Zonele
and Others3 the converse occurred in that a special entry had been entered
because the trial judge had not ordered a separation of trials after one of
three co-accused had pleaded guilty. The trial judge had permitted the trial
to proceed in respect of all the accused, including the accused who had
changed his plea to one of guilty. He had also given a verdict
simultaneously on all the accused. This was alleged to be irregular. Holmes
AJA, found that once the one accused had pleaded guilty, his trial should

3 R v Zonele and Others 1959 (3) SA 319 (A) at 325.

have been separated from that of the other accused. Reference was made
to s 155 of the previous Criminal Procedure Act 56 of 1955, which is
substantially the same as s 157 of the present Act, and the learned judge
stated that a separation of trials was the prudent and established practice
where one of the accused changed his plea to one of guilty. However, this
was not compulsory and the failure to separate did not per se result in the
convictions being set aside. Emphasising that prejudice to the accused is
the overarching consideration, the court held that on the facts of that matter,
where there was overwhelming evidence against all of the accused, the
conviction did not fall to be set aside.

[11] The general rule, therefore, is that once an accused changes their
plea to one of guilty it is necessary to separate the trials, entertain the guilty
plea, and order that the trial against the other accused start de novo.4 The
exception is where the interests of justice dictate otherwise.5 In this matter
it is self-evident that the failure to separate would have caused prejudice to
the appellant. Both Mr Tsekemane and the appellant were represented by
the same legal representative. Inevitably a conflict of interest would have
arisen. To ensure a fair trial it was prudent to order that the trial commence
before another judge. There was no irregularity committed by Griffiths J
by ordering a separation of the trials and, in fact, the appellant may have
had grounds for complaint had a separation not been granted.

[12] As regards to whether Mr Tsekemane could be called as a witness
against the appellant, it is a long established principle that an accused
person who has pleaded guilty can be called to give evidence against the

4 A Kruger Hiemstra Criminal Procedure Chapter 22 (Online Edition, May 2021) at 22-36; S v
Somicza 1990 (1) SA 361 (A) at 365 D-E.
5 R v Nzuza 1952 (4) SA 376 (A) at 381 G; R v Solomon 1934 CPD 94 at 96.

other accused once the trials have been separated.6 As far back as 1951
Schreiner JA held that when an accused charged with the same offence,
changes his plea to one of guilty, he is a competent witness against the
remaining accused in their trials. Further, the court held that it makes no
difference whether the person who has pleaded guilty to the joint charge
and been convicted, has been sentenced or not before being called as a state
witness. This is open to some doubt but in any event it does not arise in this
matter as Mr Tsekemane had already been sentenced before he testified
against the appellant.

[13] The delay in finalising the matter should be seen against the
backdrop of the chronology of events. In the first trial Mr Tsekemane was
convicted pursuant to his changed plea on 16 November 2011 and
sentenced accordingly on 18 November 2011. The trial of the appellant
commenced on 20 February 2012. She was convicted on both counts on
11 July 2013 which were treated as one for the purposes of sentence. On
4 March 2014 the appellant applied for leave to appeal and on 15 May 2014
leave to appeal was granted to this court on the issue of the special entry
and the duplication on conviction. It appears that the appellant did not
prosecute the appeal for a period of more than five years until
15 September 2020 when the appellant submitted an application for
condonation for the late filing of the notice of appeal and the appeal record.
On 30 April 2021 the appellant’s heads of argument were filed with this
Court. In these circumstances where the delay in the finalisation of the
matter lies squarely at the door of the appellant, there is no basis for finding
that the delay has violated her constitutional fair trial rights.

6 Ex Parte v Minister of Justice: in re R v Domingo 1951 (1) (A) 36 at 38 F-G.

[14] The final issue raised in the special entry was whether the appellant
had been charged twice with the same offence. Once charged with an
offence an accused person is entitled in terms of s 106 of the Act to plead
that he or she has already been convicted, or alternatively, acquitted of the
offence. The appellant did not demand a verdict in terms of s 106 (4) of the
Act7 or plead autrefois acquit or autrefois convicti. Indeed, she was not
entitled to, as s 157 (2) specifically states that the court may abstain from
giving judgment. After a separation of trials the accused is tried afresh. The
court a quo’s concerns in this regard are unwarranted.

[15] The issues raised in the special entry have no merit. There was no
irregularity committed by Griffiths J that vitiated the proceedings before
the court a quo and the special entry should not have been entered into the
record. The appeal in respect of the special entry must fail. The appeal on
duplication of convictions succeeds and insofar as this may have an impact
on the overall sentence, the court a quo found no substantial and
compelling circumstances to depart from the prescribed minimum sentence
for murder. This finding is unimpeachable and, for that reason, the sentence
of life imprisonment is appropriate.

[16] In the result the following order is made:
The appeal succeeds to the extent that the conviction and sentence
on conspiracy to commit murder is set aside.
Save for the aforegoing, the appeal is dismissed.
The conviction and sentence on the count of murder are confirmed.

7 Section 106 (4) provides that: ‘An accused who pleads to a charge, other than a plea that the court has
no jurisdiction to try the offence, or an accused on behalf of whom a plea of not guilty is entered by the
court, shall, save as is otherwise expressly provided by this Act or any other law, be entitled to demand
that he be acquitted or be convicted’.

____________________
C NICHOLLS
JUDGE OF APPEAL

APPEARANCES:

For appellant:
L D Halam
Instructed by:
Mdledle-Malefane & Associates, Mthatha

Webbers Attorneys, Bloemfontein

For respondent:
M L Makubalo

Director of Public Prosecutions, Mthatha

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:

03 December 2021
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 judgment of the Supreme Court of Appeal
Nongogo v The State (Case no 852/20) [2021] ZASCA 166 (03 December 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment in an appeal against the order of
the Eastern Cape Division of the High Court, Mthatha (the high court), which convicted and sentenced
the appellant of murder and conspiracy to commit murder.
In the high court, the appellant was charged together with accused 1 (the appellant was accused 2) for
the murder of her husband. Both pleaded not guilty. After 12 state witnesses had been led, accused 1
changed his plea to one of guilty. The presiding judge then granted a separation of trials, at the instance
of the State, in terms of s 157 (2) of the Criminal Procedure Act 51 of 1977 (the Act), and the trial of the
appellant was ordered to commence de novo. When the trial of the appellant commenced de novo
before another judge, accused 1 was a witness for the State. The judge in the new trial entered a special
entry into the record, in terms of s 317 of the Act, on the basis that accused 1 had previously been
charged together with the appellant for the same offences. The trial then proceeded and the appellant
was convicted of both murder and conspiracy to murder and sentenced to life imprisonment.
There were only two issues on which leave to appeal was granted to the SCA, namely whether the high
court duplicated convictions when it convicted the appellant on both murder as well as conspiracy to
commit murder and whether an irregularity had been committed by the judge in the first trial in high
court, justifying the special entry.
On the issue of duplicated convictions, the State conceded that the appellant should have been
convicted of either murder or conspiracy to commit murder, but not both. The SCA held that this
concession was well made and, as a result, the appeal on duplication of convictions succeeded.
On the issue of the irregularity, the SCA held that the main test in deciding whether to grant an
application for separation is whether there will be prejudice to the accused. The general rule is that once
an accused changes their plea to one of guilty it is necessary to separate the trials, entertain the guilty
plea, and order that the trial against the other accused start de novo. In this matter, the SCA held that
it was self-evident that the failure to separate would have caused prejudice to the appellant. Further,
there was nothing irregular in accused 1 testifying against the appellant after the trials had been
separated. Therefore, the first judge in the high court did not commit any irregularity by ordering a
separation of trials and that the trial against the appellant commence de novo. The SCA accordingly
dismissed the appeal on this issue and found that the special entry should not have been made.
The high court had sentenced the appellant to life imprisonment for murder, after finding no substantial
and compelling circumstances. The SCA held that this finding was unassailable and therefore the
sentence of the appellant was unchanged.