Hlakola and Another v S (Appeal) (A27/2024) [2025] ZAGPPHC 1362 (3 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1362 | Noteup | LawCite sino index ## Hlakola and Another v S (Appeal) (A27/2024) [2025] ZAGPPHC 1362 (3 December 2025) Hlakola and Another v S (Appeal) (A27/2024) [2025] ZAGPPHC 1362 (3 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1362.html sino date 3 December 2025 IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) Case no. A27/2024 (1) REPORTABLE: NO (2) OF INTEREST TO THE JUDGES: NO (3) REVISED. DATE: 03/12/2025 SIGNATURE: In the appeal between: KAIZER MATOME HLAKOLA                            First Appellant MATHEWS MALESA BUTHANE                        Second Appellant and THE STATE                                                          Respondent JUDGMENT The judgment and order are published and distributed electronically. PA VAN NIEKERK, AJ INTRODUCTION: [1]        In terms of the provisions of Section 309(1)(a) of the Criminal Procedure Act, Appellants appeal against convictions and sentences imposed by the Regional Magistrate in the Regional Court held at Cullinan, Gauteng. Appellants were arrested on 28 March 2017 and the trial in the court a quo commenced on 11 October 2017. Appellants were found guilty of all charges on 7 April 2021 and on 31 March 2023 the Appellants were sentenced. [2]        Appellants were each charged with a count of murder and two further counts of attempted murder each, and the charge sheet of both Appellants informed them that the provisions of section 51(1) of the Criminal Procedure Act 105 of 1997 (Minimum sentences Act) applies. They were also charged that they committed the offences of murder and attempted murder unlawfully and acting with common purpose. The charges stem from an incident generally referred to as "mob violence", where a group of persons jointly commit acts of violence. [3]        Both Appellants pleaded not guilty to all the charges. Appellants were both sentenced to imprisonment for life and the charges were taken together for sentence purposes in terms of Section 51(1) of the Criminal Law Amendment Act 105 of 1977. Both Appellants were also found to be unfit to possess a firearm. [4]        The Appellants were tried together and the same legal representative acted on behalf of both Appellants. [5]        When the alleged offences were committed, First Appellant was 52 years old and earned a living selling food next to the road utilised by commuters travelling to work. At that time the Second Appellant was 35 years old and a member of the South African Police Services, and part of the VIP Protection Unit. JUDGMENT OF THE COURT A QUO : [6]        For purposes of this appeal the following findings in the judgment of the court a quo are relevant, namely: [6.1]  The complainants testified at the trial respectively as state witness number one and state witness number two, and for sake of convenience will be referred to in this judgment respectively as the first- and second complainant. Although the court a quo found that the evidence of the two complainants contained certain contradictions and/or inaccuracies, the court a quo found that the totality of the evidence in material respects supported the respective versions of the two complainants and accepted their evidence and rejected the conflicting versions of the Appellants. [6.2] Relying on such evidence, the court a quo found that both the complainants identified the two Appellants during the events that took place on 26 March 2017 when the two complainants, accompanied by the deceased, were assaulted by a group of people, including the two Appellants, with a number of objects including sjamboks and golf clubs or similar objects. This assault resulted in the death of the deceased and caused substantial injuries to the two complainants. [6.3] It was further found that the evidence of the two Appellants, who attempted to exculpate themselves by testifying that they did not take part in the mob assault on the deceased and the two complainants, while admitting that they were present during certain of the events, was unreliable and rejected such evidence in favour of the version as testified by the complainants; [6.4]  The court a quo further found that there were no compelling grounds to impose any other sentence than life imprisonment as prescribed in terms of the provisions of Section 51 of the Criminal Law Amendment Act 105 of 1997 . [7]        The facts found by the the court a quo can be summarised as follows: The court a quo found that the First Appellant, accompanied by two other unidentified male persons, accosted the deceased and the two complainants in the early hours of Sunday 26 March 2017 while the First Appellant and other members of the community were patrolling the area for security purposes. They suspected that the two complainants and the deceased were involved in criminal activities and then took them to a place referred to the ''jo-jo tanks" where the community receive water supplies. At the water tanks the complainants and the deceased were assaulted by an unidentified number of members of the community (the evidence range from between 10 to 50 people) with various objects including metal bars, golf clubs, and sjamboks. During this assault the Second Appellant arrived in a motor vehicle and poured petrol over the three victims, whereafter he stated that he is going to fetch matches from his vehicle and at which time the opportunity to escape presented to the two complainants. The deceased was unable to flee as he had already been struck with an object and was rendered unable to attempt an escape. After the two complainants fled they were chased by community members and the two Appellants. The first complainant managed to hide in a bush but the Second Appellant fired shots in his direction with a firearm and he was eventually again caught by Second Appellant and other community members and brought back to the water tanks. The second complainant was caught very shortly after attempting to escape by First Appellant and other community members. By the time the first complainant was brought back to the water tanks, the deceased was lying still on the ground with blood flowing from a head injury and the second complainant was lying on top of him, also still. There they were again assaulted with sjamboks and other objects whereafter they were instructed to take the deceased and move away from the vicinity and not to report anything about the events. The two complainants were unable to remove the deceased as a result of their injuries and fled the scene and they saw that the body of the deceased was dragged to a different place where it was later found by the South African Police after a report was made by a lady who lives in a house next to the place where the body of the deceased was left by the mob. First Appellant was identified by complainants as one of the people who dragged the body of the deceased. [8]        During the sentence proceedings, evidence was led about the Appellants' personal circumstances, assisted by pre-sentence reports in relation to both Appellants. Notwithstanding the evidence regarding the personal circumstances of the two Appellants, their background and the contents of the pre-sentence reports, the court a quo found that there were no substantial and compelling grounds to deviate from the statutorily prescribed sentence and therefore sentenced both Appellants to life imprisonment on the three different counts, cumulatively. GROUNDS FOR APPEAL: [9]        During the hearing of the appeal the two Appellants were represented by different legal representatives. Separate Heads of Argument were filed for each Appellant and on a perusal of the Heads of Argument filed on behalf of both the Appellants, the grounds for appeal can succinctly be summarised as follows: [9.1] The court a quo erred by not finding that the alleged inconsistencies and/or contradictions in the evidence of the two complainants rendered their version of the events to be untrue, and that the version as advanced by the two Appellants should have been accepted by the court a quo . In the alternative it was submitted that the versions of the two Appellants in the court a quo raise sufficient doubt on the version as advanced by the complainants resulting therein that the court a quo should have found that the State did not prove the elements of the charges beyond reasonable doubt. [9.2]  The court a quo erred in applying the doctrine of common purpose as the State failed to prove the required elements of the common purpose doctrine in that: [9.2.1] The State failed to prove that Second Appellant was present when the deceased was killed; [9.2.2] The State failed to prove that the Appellants had the necessary intention to murder the deceased or to attempt the murder of the two complainants. [9.2.3] The State failed to prove that the two Appellants associated themselves or had common intent with the other members of the community who participated in the events leading to the assault of the complainants and the death of the deceased. [9.3]  The court a quo should have found that there are compelling and substantial reasons why the prescribed sentences should not have been imposed on the Appellants. [10]      Considering the aforesaid grounds of appeal it is therefore necessary to decide: [10.1] Did the court a quo correctly analyse and evaluate the evidence of the respective witnesses to arrive at the conclusion of the facts as they appear from the judgment? [10.2] Did the court a quo correctly apply the doctrine of common purpose of the facts as they appear from the record? [10.3] Should the court a quo have found that there are compelling grounds which justified a deviation from the prescribed sentence of life imprisonment in terms of the provisions of Section 51(2) of the Criminal Law Amendment Act no. 105 of 1997 ? [11]      For purposes of the aforesaid, it is therefore necessary to analyse the evidence as it transpires from the record in order to resolve the conflicting version of the events as advanced by the two complainants on the one hand and the two Appellants on the other hand in order to determine if the court a quo misdirected itself on the evidence which informed the factual findings of the court a quo . Thereafter the legal issues on the common purpose doctrine will be considered prior to dealing with the sentences imposed by the court a quo . APPROACH OF THE APPEAL COURT TO TRIAL COURT'S FACTUAL FINDINGS: [12]      The power of a court on appeal to interfere with the findings of fact of a trial court are limited. In was held as follows in Mzwandile Ronald Magasela v The State [1] : "[22]  It is trite that [t]his court's powers to interfere on appeal with the findings of fact of a trial court are limited .... In the absence of demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong." [13]      When examining the evidence, a trial court is required to adopt a holistic approach which have been explained as follows [2] : "The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weights so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt. The result may prove that one scrap of evidence or one defect in the case for either party ... was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch onto one (apparently) obvious aspect without assessing it in the context of the full picture presented in evidence". [14]      In order to determine whether the court a quo misdirected itself on the factual findings the evidence as a whole must be evaluated holistically, with due consideration to the proper approach to be adopted as referred to in the authorities supra . For that reason, it is necessary to analyse the evidence presented in the court a quo and evaluate same with proper consideration to any inconsistencies, the probabilities, and the credibility of the respective witnesses. ANALYSING THE EVIDENCE: [15]      The State called five witnesses namely the two complainants, a lady who discovered the body of the deceased on the corner of the street close to her residence, a police officer who received a telephonic report of a body in the street and who then proceeded to the scene where the body of the deceased was found, as well as the investigating officer who accompanied the two complainants to the scene of the incident and who was present when the two complainants positively identified the two Appellants as participants in the mob assault. [16]      The two Appellants testified in their own defence and led evidence of a subpoenaed witness who was a police officer at the time when he took a statement from the second complainant. [17]      At the commencement of the trial the Appellants' legal representative informed the court that the Appellants admit that, on the day of the alleged offences, the Appellants were at the place where the offences were committed and that they admit that the deceased sustained injuries on that date and at that place and that he died as a result of such injuries. They further formally admitted that they (the two Appellants) patrolled together and that there were other bigger groups in the vicinity who were also busy with patrolling the area with the intention to safeguard the area from crime. It was recorded that they denied that they assaulted the victims or poured petrol over them and it was recorded that the sole purpose of patrolling was to make sure that nobody steals or commit crime around the area. During the trial certain medical reports depicting injuries sustained by the complainants which accords with their evidence on the manner in which the injuries were sustained were not disputed, and neither was the autopsy report in relation to the deceased disputed. This report depicted the cause of death to be a head injury sustained by a hard blow to the head with a hard object, also confirming the evidence of the two complainants in that respect. [18]      The first complainant testified that he was born in January 1993 and that he resides in a "squatter camp" next to the area of plots where the assaults took place, all situated within the Mamelodi area. He testified that around 04h30 on the morning of the assaults, he, the second complainant, and the deceased left their sleeping place and proceeded to the place of employment of the deceased when, while they were walking next to a wall in an area where there are plots and houses, three male persons came walking from the opposite direction that they were walking. As they passed this group of three male persons they noticed that one was carrying a container of milk and stout beer and after they passed this trio they noticed that they had turned around were following them. The three people caught up with them and at that stage a larger group of people came from the other direction. [19]      First complainant further testified that he recognised the person who carried the container of milk and stout beer as a person whom he regularly passed on his way to work and who sells food such as "pap" and cakes near the quarries in Mamelodi. He testified that he saw this person over a period of about 3 months approximately twice per week when he passed on his way to work. He did not recognise any of the other two people who accompanied the First Appellant. [20]      First complainant further testified that this group (consisting of the three people) instructed them to go to the water tanks and when they arrived at the water tanks they found a larger group of men there, the number which he could not estimate but on the evidence substantially more that the group of three. The three persons referred to above started asking the complainants what they were doing there and first complainant placed First Appellant (the one that he recognised) in a leading role in the sense that he testified that it was First Appellant who did the questioning. (During the evidence of First Appellant he described himself as a community leader, well known to the community, and manager of a local soccer team). When they responded and explained that they were on their way to work, First Appellant accused them of lying and informed them that they would make sure that the complainants were telling the truth. Complainants and the deceased were instructed to put their hands on the water tank and was searched whereafter the whole group of people started to assault them with various objects. [21]      First complainant testified that they were assaulted with a number of objects including sjamboks, a bat (like a cricket bat), and golf clubs. [22]      During this time while being assaulted by various members of the group of people, two vehicles arrived at the scene, one of which was red in colour. At that time first complainant clearly observed First appellant who was standing in front of them and who kept pouring water on them while this mob assault took place, and he could not clearly see exactly who was assaulting him and what he was hit with, as he testified: "… I felt much pain". [23]      While this mob assault continued, the driver of the red vehicle alighted, carrying a container which petrol. This person poured petrol on them and while he was pouring petrol on them the other people who were at the scene moved away to avoid the petrol being poured on them. This person then stated that he is going to fetch matches and this provided an opportunity for the two complainants to attempt an escape and they ran off. While they were running away stones were thrown at them and the driver of the vehicle (who poured the petrol on them) gave chase to first complainant. When he realised that first complainant was outrunning him he took out a firearm and started to fire shots in the direction of first complainant. First complainant took off his jersey which had petrol on it, thinking that he may catch fire if he is hit by a bullet and threw the jersey inside a bush and went to hide inside the bush. The person who gave chase and fired shot at him instructed him to come out of the bush and threatened to shoot him and he was eventually taken out of the bush by other members of the community who assisted in the search. This person who poured petrol on them, chased him and fired shots at him was identified by both complainants the next day under the circumstances as set out hereunder, as the Second Appellant. [24]      First complainant testified that he was be able to identify second Appellant as he was able to see him after he was taken out of the bush. First complainant further testified that, while he was hiding in the bush, he could hear the deceased screaming and shouting a distance away. This evidence thus implies that, at that moment, the deceased was still alive and probably being assaulted. First complainant testified that he was apprehended by the group of people who searched for him in the bush because second Appellant threatened to shoot him if he attempted to run away. When he was taken back to the water-tanks he found the deceased lying still on the ground together with the second complainant and the group of persons then placed him on top of the other two victims and continued to assault them with sjamboks and other instruments, all the while accusing them of stealing. He positively testified that both Appellants at that stage were at the scene. He testified that First Appellant was hitting on the ground with an object stating that " today we have found thieves ". He noticed that second complainant had an open wound on the head and had blood all over him, and that the deceased had a wound on the left side of his head. Both the deceased and the second complainant were lying still and he was then instructed that he should wake up the other two victims. He was able to wake up the second complainant but the deceased seemed seriously injured and did not react. They were instructed to leave but because of their injuries were not able to take the deceased with them. They were instructed to say that they did not know who assaulted them if anybody asked, and when they were a distance away they saw the deceased being dragged away to a street corner where the deceased was left laying on the ground. [25]      They reported the incident to the deceased's sister and the next day they went to Mamelodi clinic. The deceased's brother-in-law arrived at the clinic in a motor vehicle and informed them that the police were looking for them and then took them to Kameeldrift police station where they made statements to the police. [26]      They then accompanied the police, including the investigating officer who testified and confirmed that part of the evidence, to look for First Appellant as they have recognised him and knew that he sold food at a certain place. They were unable to find First Appellant but whilst driving in the vicinity where the assaults were perpetrated they recognised the red vehicle in which Second Appellant arrived at the scene during the assaults. The red vehicle was parked inside a yard and they pointed out the vehicle to the police. The police thereupon arrested the owner of the vehicle who the accused then recognised as the person who participated in the assaults, being Second Appellant. It turned out that the place where he was arrested was his home. While this was in progress a crowd formed and they then noticed First Appellant in the crowd and pointed him out to the police who then also arrested the First Appellant, who turned out to live in very close proximity to Second Appellant. [27]      The evidence of second complainant in material respects confirmed the aforesaid version as testified by first complainant. Second complainant also testified that there were three people that they met on their way to work early in the morning, that the one identified by them as First Appellant was carrying a container with stout milk, that another group came from the other side, and that the first group instructed them to go to the water tanks where they were assaulted. Second complainant also testified that the Second Appellant arrived in a red vehicle during this assault and poured petrol over them. Second complainant testified that he was not able to get very far when they attempted to escape as he was already weak from the initial assault and he was caught by First Appellant and other members of the group who gathered at the water tank and taken back to the water tank where he was assaulted further to such an extent that he lost consciousness. When he gained consciousness, the first complainant was already brought back and placed on top of him and the deceased. Second complainant confirmed the role of the First Appellant pouring water over them and confirmed in material respects the respective roles played by the First Appellant and Second Appellant as testified by the first complainant. Second complainant also testified that he previously saw First Appellant when he passed him on his way to work at the place where First Appellant sold food, although he did not know his name. He positively placed the First Appellant in the presence of the other two men who found them on their way to work and testified that they grabbed them by their belts and told them that they were doing a patrol. He testified that the First Appellant is the one who grabbed the deceased and when the other group of persons patrolling the area arrived on the scene it was the First Appellant who informed them that; " ...yes they are here I got them ". [28]      Second complainant also testified that they were assaulted with steel objects, golf clubs and sjamboks and testified that the First Appellant had a steel object of approximately a metre long and that it was the First Appellant who assaulted him first when they arrived at the water tanks by hitting him on his knees as well as all over his body. He confirmed the other persons in the group assaulting them with sjamboks and testified that First Appellant "kept on changing" in the sense that he would assault the second complainant and then move to one of the other victims and assault that victim as well. [29]      Second complainant also testified that, during the process of the deceased and the two complainants being assaulted at the water tanks, a red bakkie arrived at the scene and that Second Appellant alighted from that bakkie carrying a two litre container with petrol which he then started to pour over them. Second Appellant then took a golf club from one of the other people and hit the deceased on the leg. When the deceased bent down and grabbed his leg, he was hit hard on the head by Second Appellant with the golf club. After this blow to his head the deceased fell to the ground and Second Appellant then threw the golf club down and said " let me go and fetch the matches from the van ". After that the first complainant and the second complainant attempted to run away but he was unable to escape because he did not have enough power to run and First Appellant and two other people came and took him back to the water tanks. When they got back to the water tanks they found the deceased lying on the ground, facing upwards and motionless. They threw second complainant on top of the deceased and the group then started to assault him again.  First Appellant had an iron object with which he hit second complainant and the others had sjamboks. First Appellant hit him on the head and he sustained a wound and after repeated blows to the head and being assaulted with sjamboks he became unconscious. When he regained consciousness, the first complainant was on top of him. At that time the group was assaulting the first complainant with a sjambok as well. [30]      Second complainant further confirmed that they identified Second Appellant when they saw the red vehicle parked inside a yard and thereafter recognised First Appellant when a crowd formed during the arrest of the Second Appellant. He confirmed that he was able to identify the First Appellant in that crowd and as a result thereof the First Appellant was also arrested by the members of the South African Police. [31]      Cross-examination of both the complainants were aimed at discrediting their version of the events, based on the alleged discrepancies between their evidence and statements that they made to the police officer after the event. These discrepancies relate materially to the nature of the objects that they testified that were used by the Appellants when they were assaulted, their identification of the vehicle which the Second Appellant allegedly arrived in at the scene, and the fact that the statements did not contain a description of certain of the items which they testified were used by the Appellants during the assault. [32)  Testifying in defence of the charges, the versions of both Appellants were materially similar. Both Appellants testified that the two of them were "patrolling" together (contrary to the complainants' versions that only the First Appellant accompanied by two other unknown males met them on their way to work that morning) and that they heard a whistle being blown which was a sign of alarm in the community. They proceeded to where they heard the whistle (at the water tanks) and discovered the three persons lying there on the ground. They noticed the victims were injured. Second Appellant testified that he fired a shot with his service pistol which he had in his possession at that time in order to calm down the group of people and then, in the interest of the three victims, they decided to go and report the matter to the police. The two Appellants then drove to the Kameeldrift police station where the Second Appellant (who is himself a policeman) remained in his vehicle to keep the vehicle running as a result of the vehicle's battery problems, while the First Appellant went inside and made a report. Thereafter they went home and made no further enquiries about the outcome of the report and were then later arrested. [33]      Save for admitting that they were at the scene where the deceased died as a result of the injuries and that the complainants were assaulted with various objects, their evidence had inter alia the following remarkable features namely: [33.1] Both Appellants testified that they did not recognise any one of the number of community members involved in the mob assault and murder. This is notwithstanding the fact that the First Appellant described himself as a community leader and manager of a local soccer team, while the Second Appellant is a policeman attached to the VIP Security detail and who lived in the area for the past 10 years, and who is on his own version well acquainted with the First Appellant and lives near him. This is further remarkable as the Appellants testified about an organised practice in the area by the community to patrol the area over weekends to curb crime, an activity wherein both Appellants participated. [33.2] They testified that they did not witness any assault being perpetrated on any of the victims, nor did they observe any weapon of any sort including a sjambok, iron rod, golf club or any other item which could have been used in the assault in the possession of any of the other persons at the scene. Considering the undisputed evidence of the nature of the injuries of the complainants, the findings of the autopsy report, and police photos taken the next day at the scene of the crimes which depict various items laying on the ground which fitted the description of weapons given by the complainants, this part of the evidence of the Appellants can be rejected summarily as being highly improbable. [33.3] Although both Appellants conceded during cross-examination that they were in possession of cellular phones, they did not deem it necessary to phone the police or an ambulance when they arrived at the scene and noticed the condition of the victims but instead decided to drive some 20 minutes to the police station to report the incident. First Appellant testified that they decided to go and report that "thieves" were caught whereas the Second Appellant testified that they proceeded to report the incident because he was concerned about the welfare of the three victims. [34]      In my view, when the evidence is considered holistically (including the evidence of other witnesses who testified) with due regard to any inconsistencies in the evidence of the two complainants, the material consistencies in the evidence of the complainants, and the probabilities in favour of the versions testified by the complainants, measured against the inherent improbabilities of material elements of the evidence of the two Appellants and the issues which were common cause during the trial, it cannot be found that the court a quo misdirected itself when arriving at the factual findings regarding the role played by each Appellant during the commission of the offences of which they were charged, inter alia for the following reasons: [34.1] The discrepancies highlighted by the cross-examination of the two complainants are not material.  These discrepancies essentially relate to the nature of the instruments used by the two Appellants, as described during the respective evidence of the two complainants and in statements. These discrepancies must be seen in the context of the fact that they were repeatedly assaulted by a mob with various instruments in a brutal manner all over their bodies. They cannot be expected (as was submitted on behalf of Second Appellant) to have made exactly the same observation in relation to each and every fact. The medical reports which were admitted at the trial confirms injuries inflicted by sjamboks and hard instruments such as those instruments which the complainants testified about and whether these injuries were caused by a golf club, a bat, a sjambok or a metal pipe is not material. What is material is the fact that both complainants provided a similar version about the role of each Appellant during the event, that they have injuries consistent with their respective versions of the event, and that the findings on the cause of death of the deceased in the autopsy report materially supported their version of the events insofar as the assaults are concerned. [34.2] It was not suggested to any of the complainants that there are any reasons why either of them would falsely implicate either of the two Appellants, thereby placing the complainants in the role of biased witnesses. It was clearly illustrated that before the events they knew the First Appellant by sight only, and before that time never met the Second Appellant; [34.3] In my view it is significant that the two Appellants were able to identify the motor vehicle in which the Second Appellant arrived at the scene when they accompanied the South African Police to search for the First Appellant. It is clear from the evidence that neither of the two complainants knew the Second Appellant nor were they aware of his residential address. When they noticed the vehicle parked inside the yard where Second Appellant reside, they immediately informed the member of the South African Police who they accompanied and who then effected an arrest on the Second Appellant. Thereafter they then also recognised the First Appellant in the gathered crowd. This part of the evidence of both complainants was similar in all material respects and confirmed by the investigating officer who effected the arrest, and it was not challenged by any of the Appellants in the court a quo . It is then significant that the Second Appellant admitted that he was at the scene of the events at the time when the offences were committed, and that he fired a shot with his service pistol. This positive identification of not only the Second Appellant but also his vehicle proverbially puts to bed the Appellants' attempt to discredit the complainants' evidence on the identity of the vehicle or the version of the two Appellants that they were patrolling together on foot when they arrived at the scene of the offences and confirms the version of the complainants that the Second Appellant arrived at the scene in a red vehicle. The versions of the two complainants in this respect are clearly to be preferred over the versions as advanced by the Appellants and in my view provide sufficient grounds to make a credibility finding against Appellants. [35]      A perusal of the State Prosecutor's cross-examination of the Appellants, and in particular the cross-examination of the Second Appellant (who is a police officer) on the reasons and circumstances when they allegedly reported the incident, discloses a version advanced by the Appellants which is so improbable when considered in the context of all the evidence viewed holistically that it can be rejected out of hand. In my view the following is relevant in this regard: [35.1] The two Appellants contradicted themselves in cross-examination on their motives to report the incident. First Appellant testified that they intended to report that thieves were caught, whereas the Second Appellant testified that they intended to report the incident because they were concerned about the assault on the victims; [35.2] Neither Appellant could satisfactorily explain why they did not telephonically call the police or an ambulance, given the particular circumstances where they were aware that the victims were injured and at risk from the mob, and where they conceded that they were in possession of cellular phones at the scene of the assaults. Second Applicant, when extensively cross-examined on this issue, repeatedly resorted to state that all that he could think of was to drive to the police station, but this response raise more doubt on the credibility of Second Appellant when his lack of any interest on the outcome of the alleged report is considered. This evidence of Second Appellant must also be considered against and the fact that First Appellant testified that he reported that thieves were caught and that he did not report any assaults. [35.3] The Appellants attempted to persuade the court a quo that the occurrence register of the police station where they allegedly reported the incident is unreliable by illustrating that there was also no record of the incident after the police attended to the scene. However, an analysis of the evidence disclose that the police did not react to the alleged report of First Appellant but actively reacted to a telephonic report by the lady who discovered the body of the deceased. Given the totality of the evidence of the two Appellants in relation to their version of the events, their observation of the injuries of the victims, their alleged appreciation of the risk of serious harm inflicted on the victims by the group of people who they testified were complete strangers to them, and the fact that Second Respondent was a serving policeman, this version of the two Appellants is so improbable that it can be rejected and the evidence of the Appellants to the effect that they reported the incident can be rejected as highly improbable and not supported by any corroborative fact. This evidence was clearly fabricated to lend credibility to the version of the Appellants that they did no take part in the mob assault, arrived at the scene after the events took place, and were concerned about the welfare of the victims. [35.4] During cross examination of Second Appellant the state prosecutor drew attention to fact that the Second Appellant, when questioned extensively on the improbabilities of his version that the two Appellants reported the incident at the police station, repeatedly gave an answer to the effect that he was so motivated to protect the interests of the victims that he could think of nothing else but to proceed to the police station to report the incident. This response was in each instance, measured against the topic of cross-examination, so improbable that a reading of the record in this respect creates the impression of a rehearsed response designed to mislead. [35.5]  The Appellants' evidence that they did not observe any person assaulting any of the victims, did not know or recognise any of the members of the community involved, and did not observe any member of the community carrying a weapon of any sort is so improbable that it can be rejected out of hand and in my view raise serious doubt on the credibility of their evidence as a whole; [36]      In conclusion, I am of the view that the court a quo did not misdirect itself and therefore that this court on appeal cannot interfere with the factual findings of the court a quo . APPLICATION OF THE COMMON PURPOSE DOCTRINE: [37]      In State v Thebus & Another [3] it was held as follows: "[18]  The doctrine of common purpose is a set of rules of the common law that regulates the attribution of criminal liability to a person who undertakes jointly with another person or persons in commission of a crime. Burchell & Milton define the doctrine of common purpose in the following terms: 'Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from the 'common purpose' to commit the crime'. Snyman points out that 'the essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others'. These requirements are often couched in terms which relates to consequence crime such as murder. [19]  The liability requirement of a joint criminal enterprise falls into two categories. The first arises where there is a prior agreement, expressed or implied, to commit a common offence. In the second category, no such prior agreement exists or is proved. The liability arises from an active association and participation in a common law criminal design with the requisite blame with the state of mind'. [38]      In the same judgment [4] the following was held: "[22] After State v Mgedezi there remains no doubt that where the prosecution relies on common purpose as a basis for criminal liability in a consequence crime such as murder, a causal connection between the conduct of each participant in the crime and the unlawful consequence caused by one or more in the group, is not a requirement". [39]      Insofar as " the intention to kill " as a requirement is concerned, it is required that the accused must have subjectively foreseen the possibility of his act causing death and was reckless of such result. In State v Sigwhala [5] it was held as follows: "The expression 'intention to kill' does not, in law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result. This form of intention is known as dolus eventualis as distinct from dolus directus. The fact that objectively the accused ought reasonably to have foreseen such possibility is not sufficient. The distinction must be observed between what actually went on in the mind of the accused and what would have gone on in the mind of a bonus pater familias in the position of the accused. In other words, the distinction between subjective foresight and objective foreseeability must not become blurred. The factum probandum is dolus, not culpa. These different concepts can never coincide." [40]      On the evidence it was found by the court a quo (which this court of appeal agrees with) that both Appellants actively participated in the arrest of the victims and the assault of the victims. It was not disputed by the Appellants in the court a quo that the victims were assaulted by a number of people with various objects and neither was it disputed that the death of the deceased was caused by the injuries inflicted to the head of the deceased in a manner consistent with the evidence of the complainants. It was also not disputed that the injuries sustained by the complainants were inflicted in the manner which they testified, namely to be assaulted with weapons as described during their evidence. The assault on the victims by the unidentified group of persons constitute a clear common criminal design and the evidence of the complainants confirms the active association and participation of the Appellants in that common criminal design. It is therefore irrelevant to decide which type of instrument was used by either of the two Appellants during the assault, to dwell on the issue of causality in relation to the murder charges, or to decide which of the three victims were assaulted by each Appellant. [41]      Insofar as mens rea is concerned, it is trite law that there are principally two forms of dolus which arise in cases of murder, being dolus directus and dolus eventualis . It is clear that in casu the State is required to prove the element of dolus eventualis beyond reasonable doubt on the available evidence. [42]      In Director of Public Prosecutions, Gauteng v Pistorius [6] , dolus eventualis was explained as follows: "In the case of murder, a person acts with dolus directus if he/she committed the offence with the object and purpose of killing the deceased. Dolus eventualis, on the other hand, although a relatively straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person's intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore 'gambling' as it were with the life of the person against whom the act is directed. It therefore consists of two parts; (1) foresight of the possibility of death occurring and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act 'reckless as to the consequences' (a phrase that has caused some confusion as some have interpreted to mean with gross negligence) or must have been 'reconciled' with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence with his/her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregarded consequence, is sufficient to constitute the necessary criminal intent". [43]      Subjective foresight, like any other factual issue, may be proved by inference [7] . To constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn. [8] [44]      In my view the evidence provides grounds beyond reasonable doubt to infer subjective foresight in the possibility of death by both Appellants when they engaged in the joint criminal enterprise of mob violence and assault perpetrated on the victims, and no other reasonable inference can be drawn from the facts, inter alia for the following reasons: [44.1] When Second Appellant poured petrol over the victims and then said that he is going to fetch matches, the only reasonable inference to be drawn from that conduct is namely that the Second Appellant subjectively foresaw the possibility of death of the victims, if not clearly intending the death of the victims. First Appellant clearly reconciled himself with these actions as he did nothing to stop the Second Appellant, and actively assisted in retrieving second complainant back to the water tanks after second complainant fled from the scene; [44.2] No reasonable person will lack serious concern for the safety of the life of a victim who is assaulted by a violent mob with various types of instruments including sjamboks, metal pipes and golf clubs. Not only did the Appellants participate in this continued assault, but both Appellants played a prominent role in retrieving the two complainants when they fled the scene for a short while after petrol was poured over them, thus actively associating themselves with the criminal enterprise in progress. After they were retrieved, both Appellants again actively assisted and participated on a continued assault on the victims; [44.3] When the two complainants managed to escape and were then retrieved and brought back to the scene of the assaults, both the Appellants were present. At that time the evidence of both complainants confirm that the deceased was lying motionless with a visible headwound and bleeding. Neither of the two Appellants testified that they took any steps to intervene for purposes of securing the safety of the deceased, clearly did not express any concern for the safety of the deceased, and instead participated in the continued assault of the two complainants. This is, in my view, indicative of a clear subjective reconciliation with the possible death of the victims with no regard to the consequences of their actions. [45]      Counsel acting on behalf of the Second Appellant argued that the State did not satisfy the burden of proof in relation to Second Appellant on the charge of murder, as it could not be proved that the Second Appellant was " present " at the time when the fatal blows were struck to the deceased because he was looking for first complainant who was hiding in the bush at that time and not present at the scene of the mob. Appling the test of an active association and participation in a criminal design with the requisite state of mind on the facts as found by the court a quo , it is clear that this argument cannot be upheld. [46]      In conclusion, in my view the application of the common purpose doctrine by the court a quo cannot be faulted. The death of the deceased was caused by the injuries sustained during the assault perpetrated by a violent mob of people who accused them of criminal activities. The very nature of the assaults, consisting of repeated blows with various instruments all over the bodies of the victims, including their heads, with instruments that can cause serious injuries as well as death, is indicative of a complete disregard for the possible consequences of the assault and the subjective foreseeability of the death of such a victim. In my view, the fact that one of the victims died as a result of the assault underpins this fact. In this regard, the conduct of the Appellants as set out in paragraph [39.1] above also indicates a subjective state of disassociation with the foreseeable death of the victims. In my view, the convictions of the Appellants of murder on the facts as found by the court a quo , applying the common purpose doctrine must be upheld. [47]      It remains to consider whether the court a quo correctly convicted the Appellants on the charges of attempted murder. The Appellants were charged with two counts each of attempted murder on the grounds that they each respectively attempted the murder of each of the two complainants. In my view, considering the facts as discussed above as well as the part of this judgment above dealing with the common purpose doctrine, the inference that the appellants intended to kill the two complainants, or at least subjectively did foresee that they may be killed during the mob assault in which they actively participated, was proven beyond reasonable doubt. In my view the fact that petrol was poured over the complainants together with the statement of Second Appellant that he was going to fetch matches warrants only one reasonable inference on the available facts, namely that they intended to set the complainants alight. It is clear that this intention was interrupted by subsequent events when the two complainants managed to escape and which fact set in motion a new sequence of events, disrupting the intention to set them alight. The totality of the evidence, in my view, disclose that the mob and the Appellants subjectively foresaw the death of all three victims and reconciled themselves with that result but were distracted when the two complainants escaped. The fact that the complainants were eventually instructed to leave and to take the deceased with them is irrelevant, as the requisite dolus was present while the assaults continued. In my view it is logical that remorse or an altered state of mind after the initiation of an act intended or foreseen to kill someone and which is interrupted by a novus actus interveniens cannot nullify prior dolus . [48]      Therefore in my view the convictions of the Appellants on the charges of attempted murder must be upheld. APPEAL AGAINST SENTENCE: [49]      In terms of Section 51(1) of the Criminal Law Amendment Act 105 of 1997 , a Regional Court or a High Court is enjoined to sentence a person to imprisonment for life if convicted of an offence referred to in Part 1 of Schedule 2, which includes murder or attempted murder. It is only where a court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the prescribed sentence, that a lesser sentence can be imposed. [9] [50]      Both counsel acting for the respective Appellants referred to various factors in their Heads of Argument which, so they argued, should have been considered by the court a quo and would have compelled the court a quo to impose a lesser sentence. These factors as referred to in the respective Heads of Argument, are factors relating to the background and upbringing of the Appellants, their personal circumstances such as employment, family and dependants. Furthermore, on behalf of the Second Appellant it was argued that the Second Appellant was involved in a " noble enterprise " being the patrolling of the area for purposes of reducing crime. (51]  In considering the requirement of " substantial and compelling circumstances " the Supreme Court held as follows with reference to the statutory obligation of a court to impose a prescribed minimum sentence as follows: [10] "There was all too frequently a willingness on the part of the courts to deviate from the sentences prescribed by the legislature for the flimsiest of reasons. Courts had a duty, despite any personal doubts about the efficacy of the policy, or aversions to it to implement those sentences ..... Parliament had ordained minimum sentences for certain specified offences and they were to be imposed unless there were truly convincing reasons for departing from them. Courts were not free to subvert the will of the legislator by resort to vague, ill-defined concepts such as relative youthfulness or other equally vague and ill-founded hypothesis that appeared to fit the particular sentencing officer's notion of fairness". Normal mitigating factors should not easily be taken as substantial and compelling circumstances. [52]      In my view none of the grounds relied upon by Appellants for mitigation of sentence constitute compelling and substantial reasons for interfering in the statutory obligation of the court a quo to impose a life sentence on both Appellants. In my view, if anything, the objective facts of the matter disclose aggravating circumstances which would neutralise any mitigating factors, such as: [52.1] The three victims were unarmed, not found in possession of anything which could remotely have been construed as being stolen or acquired through crime, and notwithstanding they were severely assaulted to such an extent that one of them there and then died from the injuries; [52.2] Apart from the violent nature of the assaults perpetrated on the victims, Second Appellant (a serving policeman) proceeded to pour petrol over the victims and indicated that he is going to set them alight. This is a despicable and cruel act disclosing a complete lack of compassion and a callous disregard for life; [52.3] Both Appellants pleaded not guilty and fabricated a version in the court a quo in an attempt to exculpate themselves, instead of taking responsibility for the consequences of their actions. During the investigation for purposes of the compilation of the pre-sentence reports, they maintained their innocence. This can only be construed as a refusal to accept blame with a resultant complete lack of remorse and inability to reform. [53]      In the premises, in my view no substantial and compelling grounds exist which warrants a deviation from the prescripts of section 51(1) of the Criminal Law Amendment Act 105 of 1997 and this court cannot interfere with the findings of the court a quo in this regard. [54]      In the result, I propose the following order: 1.         The appeal is dismissed. PA VAN NIEKERK AJ ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA I agree SELBY BAQWA JUDGE OF THE GAUTENG DIVISION PRETORIA First Appellant's attorney:       S Moeng Pretoria Justice Centre Second Appellant's counsel:   Adv. M Thipe [1] Magasela v State (1257/2023) [2025] ZASCA 08 (31 January 2025) on par. [22] [2] S v Chabalala 2003 (1) SACR134 (SCA) at par. 15 [3] 2003 (6) SA 505 (CC) [4] State v Thebus & Anather (supra) [5] 1967 (4) SA 566 (A) at 570 (B) to (E) [6] 2016 (2) SA 317 (SCA) at par. [26] [7] See: Combrinck v The State (471/10) [2011] ZASCA 116 (23 June 2011) at par. [17] [8] See: Combrinck v The State (supra) par. [17] [9] See: Section 51(3)(0) of Act 105 of 1997 [10] State v Matyityi 2011 (1) SA CR40 (SCA) at p. 41 (g) sino noindex make_database footer start