THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 511/2012
Reportable

In the matter between:

VUYANI MASELANI
FIRST APPELLANT

PATRICK MGESI
SECOND APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Maselani v The State (511/2012) [2013] ZASCA 21 (22
March 2013)

Coram:
Mpati P, Tshiqi, Pillay, JJA, and Southwood and Swain
AJJA

Heard:
8 March 2013

Delivered:
22 March 2013

Summary:
Criminal law – s 1 of act 51 of 1977 – robbery with
aggravating circumstances – determination of whether
grievous
bodily
harm
has
been
established
–
consequences to the victim of the robbery is a relevant
factor to be considered.

ORDER

On appeal from: Western Cape High Court, Cape Town (Koen AJ sitting as
court of first instance):

The following order is made:

1.  The appeal against conviction is dismissed.
2. The appeal against sentence is upheld and the sentence of 15 years’
imprisonment imposed upon each of the appellants is set aside and replaced
with the following:
‘First appellant is sentenced to ten years’ imprisonment.
Second appellant is sentenced to ten years’ imprisonment.’
which sentences are, in terms of s 282 of the Criminal Procedure Act 51 of
1977, to run from the date of sentencing, being 29 July 2010.

JUDGMENT
_______________________________________________________________
SWAIN AJA (MPATI P, TSHIQI, PILLAY JJA & SOUTHWOOD AJA
concurring):
[1] The appellants with the leave of the Western Cape High Court (Koen
AJ) appeal against their convictions of robbery with aggravating circumstances
and the sentences of 15 years’ imprisonment which were imposed upon each of
them.
[2] The first and second appellants stood trial as first and second accused
respectively, and were convicted with a third accused, but at the stage of
sentencing, the proceedings against the third accused were adjourned to allow

for a psychiatric examination to be conducted upon this accused, in terms of s
78(2) of The Criminal Procedure Act 51 of 1977 (the Act). The relevance of this
issue will become apparent when dealing with the sentences imposed upon the
appellants.
[3] The sole issue in regard to the appeals against conviction is whether as
a question of fact, aggravating circumstances were present in the form of the
infliction of ‘grievous bodily harm’ upon the victim of the robbery, within the
meaning of that term as contained in s 1(b)(ii) of the Act. The section provides
as follows:
‘1 Definitions
(1) In this Act, unless the context otherwise indicates -
“aggravating circumstances”, in relation to –
(a) …
(b) robbery or attempted robbery, means –
(i) the wielding of a fire-arm or any other dangerous weapon;
(ii) the infliction of grievous bodily harm; or
(iii) a threat to inflict grievous bodily harm,
by the offender or an accomplice on the occasion when the offence is committed,
whether before or during or after the commission of the offence.’

[4] The death of the victim of the robbery formed the basis of the murder
charge against all three accused on which they were acquitted.
[5] The finding by the trial court that all three accused were party to a
common purpose to rob was not challenged on appeal, and correctly so, as the
evidence against all of them was overwhelming. According to the first appellant,
all three accused arrived at the house where the victim was employed, looking
for work. The first appellant stated that when they arrived at the house they
knocked on the door, which was opened by the deceased and the second
appellant asked if there was work for them. When the deceased replied there

was none, the first appellant asked the deceased for water. All three accused
waited at the door whilst the deceased fetched the water. On her return, the
deceased noticed that a cell phone which she had left at the door had
disappeared and she asked where it was. All three accused initially denied
knowledge of the cell phone and the deceased then said she was going to call
the police. Accused 3 then admitted taking the cell phone, but refused to return
it to the deceased. They asked the deceased for money for petrol and she
answered that she had none. All three accused then decided the only way to
get money was to rob the deceased. According to the first appellant all three
accused held the deceased, who was struggling and proceeded to tie her up.
[6] The trial court correctly concluded that the first appellant was a truthful
witness and that his evidence to the effect that all three of the accused
participated in ‘the suppression of the deceased by force before stealing from
the premises’ could be accepted.
[7] The crux of the argument advanced by counsel for the appellants, was
that the medical evidence led by the State, as to the injuries sustained by the
deceased, which culminated in her death, did not constitute the infliction of
grievous bodily harm upon the deceased within the definition of ‘aggravating
circumstances’.
[8] Dr van de Hyde confirmed that the cause of death of the deceased was
asphyxia caused by manual strangulation. She confirmed that severe force was
not applied, because there was no fracture of the hyoid bones in the neck of the
deceased, but that the force applied was moderate, because of the presence of
haemorrhage.
[9] Counsel for the appellants submitted that for the purpose of determining
whether grievous bodily harm had been inflicted, the inquiry was concerned
solely with the ‘nature, position and extent of the actual wounds and injuries’
and the consequences stemming from the infliction of such wounds and injuries
to the victim, was to be ignored.

[10] Support for this assertion, according to counsel for the appellants, was
to be found in a dictum of Hoexter JA in R v Jacobs 1961 (1) SA 475 (A) at
478D.
‘The question whether grievous bodily harm has been inflicted depends entirely upon
the nature, position and extent of the actual wounds or injuries, and the intention of the
accused is irrelevant in answering that question.’
Read in its proper context, the learned judge of appeal did not intend to limit the
inquiry to the specified incidents of an attack upon a victim, but did so in order
to emphasise that the intention of the attacker was irrelevant to the inquiry.
[11] That this is so is illustrated in Jacobs in the majority judgment of Van
Winsen AJA with whose judgment Van Blerk JA concurred. Having pointed out
that it is a question of fact whether aggravating circumstances are present in a
particular case (at 481F), the learned acting judge of appeal expressed himself
as follows at 485B-D:
‘In deciding whether the Crown has proved the infliction of grievous bodily harm by the
accused, the jury would, in my opinion, be entitled to have regard to the whole complex
of objective factors involved in the accused’s assault upon the deceased. It could take
into consideration the shock which would inevitably result to the deceased by reason of
the fact that the accused directed two blows at his face with a knife. It could have
regard to the wounds resulting from the stabs in the face, their number, nature and
seriousness, as well as to the two blows directed to the accused’s stomach, their
severity and the results which flowed from their infliction.’
[12] Counsel for the appellants submitted that these remarks were
predicated solely upon the facts in Jacobs and were never intended to generally
lay down what factors should be considered, in ascertaining whether grievous
bodily harm had been inflicted. I disagree. It was made clear as a general
proposition that the whole complex of objective factors, involved in the assault,
are to be considered in deciding whether the infliction of grievous bodily harm
had been established. This expressly included the ‘results which flowed’ from
the wounds inflicted.

[13] Common sense dictates that where the object of the provision is to
penalise ‘the infliction of grievous bodily harm’ upon a victim, the consequences
suffered by the victim are a relevant consideration. As pointed out by the trial
court, ‘what harm can be more grievous than death’. This must be so where the
victim dies as a result of the infliction of bodily harm.
[14] In addition, as pointed out by the trial court, if the harm suffered by the
victim is excluded from consideration, absurd consequences could result where
‘…a mere threat to kill would result in a conviction with robbery by aggravating
circumstances, but actual death would not if the degree or nature of the force applied in
order to bring about the death could not be said to be grievous.’
[15] In the result, because the deceased died as a consequence of the
injuries inflicted upon her neck, grievous bodily harm was established on the
facts.
[16] By virtue of the provisions of s 1 of the Act, once a common purpose on
the part of the accused to rob was proved and the infliction of grievous bodily
harm upon the victim was established, then the offence of robbery with
aggravating circumstances was proved against all three accused. In such a
situation if it is uncertain which of the parties to the common purpose to rob,
inflicted grievous bodily harm upon the victim, it matters not. It is not necessary
to prove that this consequence was foreseen by the members to the common
purpose to rob, provided it is established that one or other, or all of them,
inflicted such harm. See S v Dhlamini & another 1974 (1) SA 90 (A) at 94B-D.
[17] The trial court found that according to the evidence of the appellants,
accused 3 was alone with the deceased for a sufficient amount of time during
which her death eventuated. However, because their evidence was not
corroborated in accordance with the cautionary rule regarding evidence given
by an accused, implicating a co-accused, the trial court held that it had not been
established beyond a reasonable doubt that accused 3 had killed the deceased.
The trial court also found that a common purpose to murder on the part of all

three accused was not proved. In the result all three accused were acquitted on
the murder charge.
[18] Although the correctness of this conclusion is not before this court, it is
necessary to examine the evidence of the appellants, implicating accused 3 in
the murder of the deceased. This is so, because in order to properly consider
the sentences imposed upon the appellants, a relevant issue is whether the
evidence established any involvement by the appellants, in the infliction of
grievous bodily harm upon the deceased, which resulted in her death. If
accused 3 was solely responsible, then the moral blameworthiness of the
appellants, in relation to the grievous bodily harm inflicted upon the deceased,
was considerably less than that of accused 3. This was a factor which the trial
court did not consider when passing sentence, as a result of the conclusion it
reached on the murder charge.
[19] According to the first appellant, after they had subdued the deceased,
accused 3 was asked to stay and guard the deceased, whilst the appellants
went upstairs, to search for items to steal. Whilst upstairs, the first appellant
stated that the second appellant, had called to accused 3 asking if the
deceased was all right. Accused 3 replied that she was. Shortly thereafter, the
first appellant saw children arriving at the home and he and the second
appellant ran downstairs to make good their escape. The first appellant stated
that he saw accused 3 holding the deceased and the second appellant then
asked accused 3 why the deceased was not moving. Accused 3 replied that he
was simply holding her. The appellants then carried the deceased and placed
her upon a bed. They then tried to wake her, and when unable to do so they
assumed she was unconscious. Accused 3, however, maintained that he had
never entered the house at all. This was refuted by two of the state’s witnesses,
who saw three individuals approach and three individuals leave the house.
[20] The trial court, for the reasons set out in the judgment, correctly
concluded that it had no hesitation in accepting the evidence of the first
appellant and rejecting the evidence of the second appellant and accused 3

where their testimony conflicted with that of the first appellant. The trial court
also correctly found that with due regard being had to the fact that the first
appellant was a co-accused and his evidence therefore required careful
scrutiny, the evidence of the first appellant was reliable and could be accepted
as true.
[21] In contrast to this finding the trial court correctly found that the evidence
of accused 3 that he remained in the vehicle and never entered the premises
‘was obviously uncreditworthy and must be rejected’ because of the evidence of
the state witnesses.
[22] The trial court also made detailed findings on the demeanour of all of
the accused. It found that with regard to the first appellant ‘his demeanour was
that of a remorseful person who had seen the error of his ways and had decided
to tell the truth’. In contrast, the trial court found that the second appellant and
accused 3 were ‘less impressive witnesses’ and each ‘attempted to minimise
his role in the events of that day and to point fingers at others’.
[23] On the first appellant’s evidence only accused 3 could have strangled
the deceased, whilst both appellants were upstairs. Indeed, accused 3 was the
only one who had a motive to murder the deceased. The first appellant stated
that when they arrived at the house, accused 3 had told them that he had
worked there before. Accused 3 also told the deceased that he used to work at
the premises. Accused 3 accordingly knew that the deceased would be able to
tell the owners of the house, that one of her attackers claimed to have worked
there before, which would possibly enable the police to trace him. For this
reason accused 3 could not risk the survival of the deceased. However, the trial
court, as pointed out above, concluded that because the evidence of the
appellants implicating accused 3 in the murder of the deceased was not
corroborated ‘in any respect significant enough to outweigh the cautionary rule,
and the risk of relying on the evidence of co-accused, we are not persuaded
beyond reasonable doubt that it was accused 3 who killed the deceased’.

[24] Although corroboration of the evidence of an accused, which implicates
a co-accused in the commission of an offence, is one of the recognised
safeguards to reduce the risk of a wrong conviction, this is obviously not the
only way in which this danger can be overcome. The absence of gainsaying
evidence by the co-accused, or his mendacity as a witness, may, depending
upon the facts, be regarded as a sufficient safeguard. Satisfaction of the
cautionary rule does not necessarily warrant a conviction. What is required is
proof beyond reasonable doubt and ‘this depends upon an appraisal of all of the
evidence and the degree of the safeguard aforementioned’. See S v Hlapezula
& others 1965 (4) SA 439 (A) at 440D-H.
[25] If it can be said that ‘the accomplice is beyond all question a
satisfactory and convincing witness while the accused is the opposite’ then
corroboration is not required. See R v Mpompotshe & another 1958 (4) SA 471
(A) at 476F-G. Similarly as pointed out by Schreiner ACJ in Mpompotshe at
476E-F:
‘The cautionary rule does not require that the triers of fact should be told, or should
warn themselves, that there must always be corroboration of the accomplice.’
[26] Having correctly found that the evidence of the first appellant was
truthful and could be accepted, whereas the evidence of accused 3 could not,
the trial court, in requiring corroboration of the first appellant’s evidence
implicating accused 3 in the murder of the deceased, misdirected itself. The
evidence of the first appellant proved beyond a reasonable doubt that accused
3 had in fact murdered the deceased. The trial court accordingly erred in
acquitting accused 3 on that charge. The evidence of the first appellant also
established that the appellants played no part in the infliction of grievous bodily
harm upon the deceased. That they were found guilty of this crime is solely as a
consequence of the deeming provisions of s 1 of the Act.
[27] The trial court, in sentencing the appellants, referred to the approach
formulated in S v Malgas 2001 (2) SA 1222 (SCA), which is to be followed when
a court is faced with the task of sentencing an offender in terms of ss 51 and 52
of the Criminal Law Amendment Act 105 of 1997. This court formulated the test

for when the prescribed sentence may be departed from in the following terms
(para 25):
‘If the sentencing court on consideration of the circumstances of the particular case is
satisfied that they render the prescribed sentence unjust in that it would be
disproportionate to the crime, the criminal and the needs of society, so that an injustice
would be done by imposing that sentence, it is entitled to impose a lesser sentence.’
[28] The trial court also referred to the decision of this court in S v Vilakazi
2009 (1) SACR 552 (SCA) in which this court held that (para 15):
‘It is incumbent upon a court in every case, before it imposes a prescribed
sentence, to assess, upon a consideration of all the circumstances of the
particular case, whether the prescribed sentence is indeed proportionate to the
particular offence’ and that the essence of the inquiry (para 18) ‘is that
disproportionate sentences are not to be imposed and that courts are not
vehicles for injustice.’
[29]      By virtue of the misdirection committed by the trial court, the absence of
any involvement by the appellants in the death of the deceased, was not
considered by the trial court when passing sentence. This in itself was a further
misdirection. To sentence the appellants to the prescribed minimum of 15 years’
imprisonment, when due regard is paid to this factor, would result in the
imposition of a disproportionate sentence. An additional circumstance of
relevance is the sentence which was imposed upon accused 3. We were
informed by counsel that accused 3 was sentenced to ten years’ imprisonment.
The psychiatric investigation found that accused 3 suffered from mild intellectual
disability. It would be unjust if accused 3, who caused the death of the
deceased, received a lesser sentence than the appellants. Regard being had to
all of the above, substantial and compelling circumstances exist for the
imposition of a sentence less than the minimum prescribed sentence. A
proportionate sentence in all of the circumstances to be imposed upon the
appellants is that of ten years’ imprisonment.
[30]      In the result the following order is made:

1. The appeal against conviction is dismissed.
2. The appeal against sentence is upheld and the sentence of 15 years’
imprisonment imposed upon each of the appellants is set aside and replaced
with the following:
‘First appellant is sentenced to ten years’ imprisonment.
Second appellant is sentenced to ten years’ imprisonment.’
which sentences are, in terms of s 282 of the Criminal Procedure Act 51 of
1977, to run from the date of sentencing, being 29 July 2010.

K G B SWAIN

ACTING JUDGE OF APPEAL

APPEARANCES:
FOR FIRST AND
M CALITZ
SECOND APPELLANTS:
LEGAL AID BOARD, CAPE TOWN
Bloemfontein Justice Centre, Bloemfontein

FOR RESPONDENT:
R J VAN ROOYEN

DIRECTOR OF PUBLIC PROSECUTIONS,
CAPE TOWN

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

22 March 2013

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Maselani & another v The State
(511/2012) [2013] ZASCA 21 (22 March 2013)

Media Statement

The appellants were convicted of robbery with aggravating circumstances and
sentenced to 15 years’ imprisonment. They appealed against their convictions and
sentences. Their appeals against conviction were dismissed on the basis that the trial
court correctly found that in determining on the facts, whether grievous bodily harm
had been caused to the victim of the robbery, the consequence to the victim, in this
case her death, was a relevant factor to be considered. As regard sentence, because
the evidence established that the death of the victim had solely been caused by
accused 3 and not by the appellants, this was a relevant factor to be considered in
determining whether the sentence passed was proportionate to the crime, the
criminal and the needs of society. This factor had not been considered by the trial
court, with the result that the appeal against sentence succeeded. The sentence
imposed upon the appellants was accordingly reduced from 15 years’ to 10 years’
imprisonment each.

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