Mabena and Another v S (A131/2022) [2025] ZAGPPHC 1364 (31 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 1364 | Noteup | LawCite sino index ## Mabena and Another v S (A131/2022) [2025] ZAGPPHC 1364 (31 December 2025) Mabena and Another v S (A131/2022) [2025] ZAGPPHC 1364 (31 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1364.html sino date 31 December 2025 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: A131/2022 (1)      REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES: NO (3)      REVISED Date 31 December 2025 K. La M Manamela In the matter between: FANA MABENA First Appellant ARTHUR MAGABELA Second Appellant and THE STATE Respondent DATE OF JUDGMENT: This judgment is issued by the Judges whose names are reflected herein and is submitted electronically to the parties/their legal representatives by email. The judgment is further uploaded to the electronic file of this matter on Caselines by the Judge’s secretary. The date of the judgment is deemed to be 31 December 2025. JUDGMENT Manamela, AJ (Phahlane, J concurring) Introduction [1]      The first appellant, Mr Fana Mabena, and the second appellant, Mr Arthur Magabela, appeal against their conviction, on 20 October 2017, and sentencing, on 9 February 2018, by the Regional Court for the Regional Division of Gauteng, Pretoria (‘the trial court’). They were convicted by the trial court (following their plea of not guilty) in respect of charges for: (a) attempted robbery - with aggravating circumstances [1] - of a motor vehicle (count 1); (b) murder committed during an attempted robbery (count 2); [2] (c) possession of a prohibited firearm (count 3), and (d) possession of ammunition (count 4). [2]      The counts or charges against the appellants and their subsequent conviction, primarily, relate to the attempted robbery and death by gunshot of Mr Mbafude Hendrick Maseko (‘the deceased’) on 20 August 2011 in central Pretoria. [3]      The trial court imposed identical sentences on the appellants in respect of the four counts they were convicted of. But after ordering a different regime for the concurrent running of the sentences for the appellants, the first appellant was effectively sentenced to 24 years imprisonment and the second appellant to an effective 28 years prison term. [3] The appellants, in terms of this appeal, seek the reversal by this Court of their conviction of the four counts and the accompanying sentences (‘the Judgment’). The appeal is before us with leave of the trial court. [4]      The appeal came before us, as a full bench of this Division, on 9 September 2025. Mr C du Plessis appeared for the appellants and Mr JP Conradie appeared for the respondent (‘the State’). This judgment was reserved following the hearing of submissions by counsel . Background facts [5]      The relevant facts in the background to this matter, briefly narrated, are derived primarily from the facts which are common cause between the State and the appellants or, otherwise, I will point out any fact which is in dispute. [6 ]      The deceased was killed during the night of 20 August 2011 in Pretoria central. The appellants were arrested near the scene of the crime during the same night. But, both appellants maintained that they were arrested elsewhere and taken by the police to the scene of the crime, which assertion was rejected by the trial court. [7]      On 18 October 2013, both appellants entered a plea of not guilty to all four counts they faced before the trial court. It would take more than four years for their trial to conclude with their conviction on all counts on 20 October 2017 and sentencing on 9 February 2018 , as already stated . The period of incarceration of the appellants whilst awaiting the conclusion of their trial, as would appear below, is relevant to the sentences imposed by the trial court. [8] On 17 September 2020, the trial court granted both the appellants leave to appeal their conviction and sentences on all counts to this Court. The appeal was first enrolled for hearing on 17 November 2022. It came before Sardiwalla J and Nicholls AJ, but did not proceed due to the record being substantially incomplete. As indicated, ultimately, the appeal came before us on 9 September 2025, when this judgment was reserved. The State’s case before the trial court (summarised) [9]      The appellants, as indicated, pleaded not guilty to all counts they faced before the trial court. The State called a number of persons, as witnesses, before the trial court, including: (a) Mr Wando Gordan James; (b) Mr Werner van der Bergh; (c) Constable Jan Sikhaulela, and (d) Constable Bennett Matlau. I will mention others, below. [10]    Mr Wando Gordan James was one of the eyewitnesses who observed some of the activities relating to the crimes unfold. What follows formed part of his testimony before the trial court. He was driving in the vicinity of the Kgosi Mampuru Correctional Services’ premises in Pretoria when he saw a white Toyota Camry motor vehicle (‘the Camry’) approaching an intersection at high speed. It was around 22h00. The place was lit by streetlights. The Camry hit a speed hump (or a permanent raised road surface) still maintaining high speed. He also immediately twice heard the sound of gunshot. The Camry then hit his own bakkie (or an open cargo pickup truck) motor vehicle twice and, thereafter, hit a water hydrant, before it came to a halt. Mr James, further, told the trial court that upon the Camry stopping he saw two people exiting or jumping out of same, although he couldn’t say which of them exited from which door. However,  he saw that one person exited from the left front door of the vehicle, whilst the other exited from its right back door. They were eight to ten metres from him and he observed them for a few seconds. The two (one tall and one short) faltered or paused for a moment, looked at Mr James and then proceeded to run away. They were limping. Prison wardens and soldiers came to the scene, followed by police and an ambulance. He, thereafter, saw the two men – with their clothes bloody and still limping - brought back by the police to the scene. The appellants were identified by this witness, at the scene and in the trial court, as the same people he saw exiting the Camry. [11]    The second witness for the State was Mr Werner van der Bergh, another eyewitness. Mr Van den Bergh’s testimony included what appears next. He told the trial court that he was at home when, around 22h40, he heard his or a neighbour’s dog barking viciously. His house is located about 200 to 300 metres from the scene of the Camry’s accident. Armed with a flashlight he went outside of his house to investigate. He came across the two appellants hiding in the bushes. He also noticed that the first appellant’s shirt had blood spatters. Thereafter, the members of the South African Police Service (‘the SAPS’ or ‘the police’) and members of the military police arrived and took the two appellants into custody. This was after the police had searched both appellants and found two cellphones, a wallet or purse and a driver’s licence on the first appellant. On or under the second appellant, the police found a handgun. The second appellant was lying on the handgun. But, the subsequent evidence of Constable Matlau on this, was that he only found two cellphones on the first appellant, which were, subsequently handed in. No purse or driver’s licence was booked into the SAP13. But, nothing turned on this discrepancy for purposes of the State’s case or that of the accused (i.e. the two appellants) before the trial court. Also, no evidence was led on the ownership by either of the appellants or the deceased of the two cellphones. [12]    Other witnesses who testified before the trial court were members of the SAPS or the police who attended at the scene of the crime or were involved in some way in handling the items seized from the appellants or the body of the deceased, or dealing in some way with the appellants. They included Constable Jan Sikhaulela who attended the scene of the Camry’s accident. He told the trial court that through information from a member of the public, he found the appellants lying down on their stomachs under the trees. Upon searching the second appellant - whilst on the ground – he felt something like an iron object on him. He ordered him to stand up and found a firearm on the ground where the second appellant was lying. It was a 9 mm Norinco, which was ready to fire and had six live rounds in the magazine and one inside the chamber. He placed the firearm and ammunition in forensic bags and booked same into the SAP13. Constable Bennet Matlau also attended at the scene with Constable Sikhaulela and noted the appellants’ blood stained clothes and two cellphones found on the first appellant. He later said that he could not remember on whom he saw the bloodstains. He also mentioned that he saw constable Sikhaulela finding a firearm on the second appellant. [13]    Warrant Officer Karel Benjamin Visagie, a photographer, attended the crime scene to take photographs of the scene and drew a sketch plan of same. Constable Maphura Dibetso’s role at the scene involved opening the vehicle in which the deceased was. He noticed two holes at the back of the head of the deceased. He, thereafter, cordoned off the crime scene and ensured that there was no entry by unauthorised persons to prevent interference with and contamination of the crime scene. The appellants’ case (as accused) before the trial court (summarised) [14]    The appellants, as already indicated, pleaded not guilty to all charges and were legally represented during the State’s case. But, thereafter, from the moment of their respective testimonies Legal-Aid SA withdrew their representation and the appellants pursued their respective defence of the counts on their own (i.e. without legal representation). This was also the case when they were sentenced. [15]    The appellants or one of them had told the trial court of a breach of trust which led to the withdrawal of the initial legal representatives. A legal representative appointed subsequently for both appellants – again through Legal-Aid SA on the request of the trial court - also withdrew due to problems with instructions from the appellants or one of them. Further attempts to secure legal representation from Legal-Aid SA were in vain. The appellants had also elected not to make use of assessors during the trial. [16]    The appellants testified in their own defence. They did not call any witnesses. Their testimonies were , essentially, along the following lines. The first appellant, Mr Mabena, denied committing any offence or any wrongdoing. His version of events was, essentially, that he was arrested by the police whilst walking in the street around Kgosi Mampuru prison in Pretoria central minding his business. He had been dropped there from Unitas Hospital in Centurion by a car he hitched a ride from driven by a person named Bongani. It was around 22h20. He was in the area to buy stock for his business at the Bosman train station. He is from Katlehong in Johannesburg. The soldiers arrested him and took him to the scene of the crime where he found the police. The police badly assaulted him and, thereafter, took him to the scene of the crime. The second appellant, Mr Magabela, also denied any wrongdoing or committing any offence. He also maintained that he was arrested by the soldiers or the police whilst walking in the street and then taken to the scene of the crime scene. He largely repeated the version of the first appellant. [17]    The appellants made the following admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 before the trial court: (a) that, the deceased died from a gunshot wound to the skull; (b) regarding the contents of the post-mortem report; (c) the chain-of-custody regarding the deceased’s body, and (d) that, the blood spattered on their clothes belonged to the deceased. Further, the fingerprints of both appellants were found on the outside of the Camry in which the deceased was murdered. But, the appellants denied that they killed the deceased. [18]    The State disputed allegations by the appellants that they were: (a) assaulted by the SAPS or military police; (b) brought close to the deceased’s body; (c) forced to approach the deceased’s body, or (d) instructed to wake up the deceased. Judgment (both conviction and sentences) of the trial court [19]    The proceedings before the trial court were presided over by Mr A Klopper, a regional magistrate. He handed down the Judgment, in terms of which the appellants were convicted on 20 October 2017 and sentenced on 9 February 2018. [20]    In the Judgment, the trial court specifically noted though that, the charge sheet incorrectly made reference to section 51(2) of Criminal Law Amendment Act 105 of 1997 (‘the CLAA’), including Part II of Schedule 2 thereof, in respect of count 1 for attempted robbery. [4] That court, correctly so, remarked that no such offence is mentioned under the latter provision. [5] The trial court also mentioned that the appellants were informed of the application of the minimum sentence on both counts 1 and 2. And, it further stated during sentencing that count 1 (for attempted robbery with aggravating circumstances) carried a minimum sentence of 15 years imprisonment and count 2 (for murder committed during an attempted robbery) carried a minimum sentence of life imprisonment. These remarks and findings are critical for this appeal and will be discussed further, below. [21] The trial court took into account the personal circumstances of the appellants, significantly derived from the pre-sentencing reports. I will reflect some of these in the discussion of the issues below. It also considered whether substantial and compelling circumstances existed to deviate from imposing the minimum sentences, it found applicable, prescribed by the CLAA. Heavy reliance in this regard was naturally placed on the aidful principles from S v Malgas [6] by the Supreme Court of Appeal (‘the SCA’) regarding when it is appropriate to depart from the prescribed minimum sentences in the CLAA when substantial and compelling circumstances are found to exist. [7] It also considered the fact that the appellants spent a considerable amount of time in jail awaiting their trial. This was said to be a period of 5 years and 6 months. The delay was said to have been caused: (a) to a great extent, by the appellants’ change in legal representation; (b) by the appellants’ request to be provided with a complete transcript of the proceedings in order for them to conduct their own defence; (c) by the acquisition of the pre-sentencing report which took unusually many months; (d) by termination of the presiding officer’s contract as a regional magistrate, and (e) the relocation of the public prosecutor to the Pretoria North Magistrates Court. The trial court took into account the fact that these factors led to the  appellants awaiting their trial ‘for an extraordinary lengthy period’ against the principles set out in the authorities. [8] [22]    Regarding count 2 for murder, the trial court considered what appears above to constitute substantial and compelling circumstances justifying deviation from the imposition of the prescribed minimum sentence for life imprisonment. This it did, whilst bearing in its mind that the crime of murder is abhorrent and the interests of society required that long term imprisonment be imposed. [23]    The trial court sentenced the first appellant as follows: (a) count 1 (i.e. aggravated attempted robbery) to 14 years’ imprisonment; (b) count 2 (i.e. murder committed during an attempted robbery) to 24 years’ imprisonment; (c) count 3 (i.e. unlawful possession of firearm with identifying mark altered) to 5 years’ imprisonment, and (c) count 4 (i.e. unlawful possession of ammunition) to 1 year’s imprisonment. The trial court went on to order that all sentences run concurrently which returned for the first appellant an effective sentence of 24 years’ imprisonment. [24]    The second appellant received the same sentences as the first appellant. But, the trial court took into account his previous conviction for robbery, a serious offence, to warrant that he be treated differently in order to achieve the rehabilitative and deterrent objectives in sentencing. It only directed that 10 years of the sentence for count 1 run concurrently with the sentences in respect of counts 2 to 4 and, thus, meant that the second appellant should serve an effective sentence of 28 years’ imprisonment. [25]    Both appellants, as stated above, were declared unfit to possess a firearm in terms of section 103 of the Firearms Control Act 60 of 2000 . [26]    Dissatisfied with both their conviction and sentences, the appellants obtained leave of the trial court for t his appeal. Grounds of appeal General [27] This appeal, as indicated, is against the conviction of the appellants on all four counts and the consequential sentences imposed on them by the trial court . They seek, primarily, that this Court consider whether there was a misdirection on the part of the trial court in finding that: [27.1]  the State proved count 1 for attempted robbery with aggravating circumstances. The appellants say that their conviction of count 1 was not supported by evidence. For, it is not the only inference the trial court could have made that the appellants wanted to rob the deceased. [27.2]  count 2 for murder committed whilst attempting to execute robbery with aggravating circumstances has been proven. There was no reason stated in the charge sheet to trigger imposition of a life sentence. For, without the attempted robbery the count of murder does not carry a life sentence, but only a sentence of 15 years’ imprisonment. Also, a different trigger was mentioned during the plea stage (i.e. that there was more than one person who committed the robbery). [27.3]  the first appellant possessed the firearm jointly with the second appellant and, thus, acted with a common purpose. [27.4]  the attempted robbery with aggravating circumstances (i.e. count 1), carried a minimum sentence of 15 years. [28] The Judgment is also criticised for being devoid of a ‘reasoned evaluation’ of the evidence before the trial court. Counsel for the appellants submitted that there was just a blanket view in the Judgment that the appellants acted in common purpose and, thus, are guilty of all charges, and that the Judgment lacked reasoned findings on both the murder and robbery charges. Contrary to the authorities the Judgment doesn’t reveal whether it is premised on facts or inferences based on the facts, it is further argued. [9] [29]    The State, on the other hand, is of the view that the criticism of the Judgment by the appellants is not warranted. The trial court, among others, found that the appellants’ versions were ‘a figment of their imagination’, [10] counsel for the State submitted. It correctly rejected the appellants’ versions on the basis that they were not reasonably possibly true and were inherently improbable. And, further, it considered the totality of the evidence before it and, even, held that ‘the evidence fits, like parts of a puzzle put together’. [11] This aligned with the authorities, [12] counsel’s submissions concluded. Issues for determination [30] This being an appeal against the conviction and sentences of the appellants, the issues requiring determination will be focussed primarily on these two aspects, as dealt with by the trial court . But, the pertinent issues requiring determination will be those from the grounds advanced by the appellants for this appeal. [31]    The grounds of appeal, reflected in detail above, give rise to the issues discussed, next.  The issues are whether: (a) the State proved that the appellants are guilty of attempted robbery with aggravating circumstances; (b) the State proved that the appellants committed murder whilst attempting to execute robbery; (c) the charge sheet disclosed a reason warranting a life sentence to be imposed for murder; (d) the first appellant jointly possessed the firearm with the second appellant; (e) the appellants acted with a common purpose, and (f) minimum sentence of 15 years for attempted robbery with aggravating circumstances is statutorily prescribed. These are the primary issues requiring determination. They are potentially dispositive of this appeal. [32]    Another issue complained of by the appellants, which appears secondary or ancillary to, or even embedded in, those mentioned above, relates to the formulation of the charges or counts for robbery and murder. It is submitted on behalf of the appellants that some of the charges were inadequately or wrongly formulated, which shortcoming, in turn, impacted the sentences imposed by the trial court. Further issues may arise during the discussion. And some of the issues for determination will be discussed jointly, after t he legal principles applicable to the issues, to which I turn. Applicable legal principles [33] This being a criminal appeal it is only natural that the primary legal principles will be premised on the Criminal Procedure Act 51 of 1977 (‘the CPA’) and other related pieces of legislation. [34]    Section 1(1) of the CPA, defines ‘aggravating circumstances’ – save where indicated otherwise by the context - in relation to ‘robbery or attempted robbery’ as including the ‘wielding of a fire-arm or … the infliction of grievous bodily harm …by the offender or an accomplice on the occasion when the offence is committed’. [13] [35]    The Criminal Law Amendment Act 105 of 1997 (i.e. the CLAA) is also relevant to the issues in this appeal. Section 51 thereof deals with discretionary minimum sentences for certain serious offences, as follows, in the material part: (1) Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life. (2) Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in- (a) Part II of Schedule 2, in the case of- (i)   a first offender, to imprisonment for a period not less than 15 years; (ii)   a second offender of any such offence, to imprisonment for a period not less than 20 years; and (iii)   a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years… (3) (a) If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and must thereupon impose such lesser sentence … [36]    Part I of Schedule 2 of the CLAA provides in relation to ‘murder’, as envisaged in section 51(1) of CLAA, as follows in the material part: Murder, when- (a) it was planned or premeditated; (b) … (c) the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences: (i)  … (ii) robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977 ( Act 51 of 1977 ); (d) the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy … [underlining added] [37]    Part II of Schedule 2 of the CLAA, further, provides for ‘robbery’, as envisaged in section 51(2) of CLAA, for ‘[r]obbery … when there are aggravating circumstances; or … involving the taking of a motor vehicle’. [38] Section 4(1) of the Firearms Control Act 60 of 2000 (‘the FCA’) lists prohibited firearms including a firearm whose serial number or other identifying mark has been changed or removed without the written regulatory permission. [14] Section 90 of the FCA deals with prohibition of possession of ammunition without a licence or requisite authority. And section 103 of the FCA empowers the court to declare a ‘person to be unfit to possess firearm’. [39] Section 280 of the CPA deals with cumulative or concurrent sentences. In terms of the latter, a sentencing court may direct that p rison sentences run concurrently. [15] On the other hand, s ection 282 of the CPA provides for the antedating of sentences of imprisonment. [40]    Also applicable to this matter is the doctrine of common purpose. The doctrine makes it possible for conduct of the one party (i.e. the immediate party) to be imputed to another party (i.e. the remote party). [16] This is competent in either of the following two situations: (a) where an agreement or ‘mandate’ exists between two or more parties, which may be express or implied,  to do a particular act and, ultimately, the act done comport with the express or implied agreement or mandate, [17] and (b) where, there is active association by the remote party with the immediate party’s conduct by actually committing some act intended to associate himself with the immediate party’s conduct. [18] [41]    In S v Mgedezi And Others [19] the Appellate Division (now the SCA) set out the requirements to be met for liability for murder on the part of an accused on the basis of the ‘active association’ form of common purpose. They are, that: (a) the accused ought to have been present at the scene during the commission of the violence; (b) he ought to have been aware of the assault; (c) he ought to have had an intention to make common cause with those actually perpetrating the assault; (d) he ought to have manifested that he shared a common purpose with the perpetrators of the assault by performing some act of association with their conduct, and (e) he ought to have had the necessary mens rea in respect of the offence, such as the killing of the deceased (i.e. intended the deceased to be killed or to have foreseen the possibility of the deceased being killed) and acted in association with the recklessness as to whether or not death was to ensue. [20] [42] Further legal principles, some of which may actually be trite, include the following. The state must prove its case beyond reasonable doubt and if the accused’s versions are reasonably possibly true, they are entitled to their acquittal even though their explanation is improbable. [21] In evaluating the evidence before it, a court ought not to decide the matter in bits and pieces, but to have regard to all available evidence. [22] Also, the court ought to apply its mind not only to the merits or demerits of an accused’s witnesses, but also to the probabilities of the case. [23] The probabilities, in turn, ought to be tested against the proven common cause facts. [24] In addition to these, other legal principles would, undoubtedly, emerge from the discussion of the issues, next. Formulation of counts 1 and 2 and the prescribed minimum sentences General [43]    As indicated above, the appellants criticised the formulation of the charges relating to the attempted robbery (i.e. count 1) and murder (i.e. count 2) of the deceased. They say their formulation was incorrect and this had a bearing on the outcome, being both their conviction and sentences. [44]    In the appellants’ view, the formulation of the impugned counts or charges was inadequate or wrong and, therefore, the minimum sentences referred to by the trial court, were not applicable. Count 1 (for attempted robbery with aggravating circumstances) [45]    Count 1, for attempted robbery with aggravating circumstances, was formulated as follows in the charge sheet (and I only reflect the material part): That the accused are guilty of the offence of attempted robbery with aggravating circumstances. In that upon or about the 20 day of AUGUST 2011 and at or near PRETORIA-CENTRAL , in the Regional Division of GAUTENG , the accused did unlawfully and intentionally assault MBAFUDE HENDRICK MASEKO , and did then and there and with force attempted to take the following items, to wit A CAMRY MOTOR VEHICLE His/her property or property in his/her lawful possession from him/her. AGGRAVATING CIRCUMSTANCES being A FIREARM WERE USED AND IN FACT MR MASEKO WAS SHOT · If accused is/are convicted of the above charge, section 51(2)(a) makes provision for a minimum sentence of (i) 15 years imprisonment in the case of a first offender (ii) 20 years imprisonment in the case of a second offender (iii) 25 years imprisonment in the case of third or subsequent offender [25] [46]    The charge was put to the appellants before the trial court substantially as framed in the charge sheet. It is submitted for the appellants that it was incorrect for the State to put count 1 as a charge falling within the ambit of section 51(2) of the CLAA, read with its Schedule 2. [26] The provisions do not apply to an attempt of an offence as in attempted robbery, but to the actual offence, such as robbery. Therefore, count 1 carried no minimum sentence, the submission concluded. I agree. The relevance of an attempted robbery to a minimum sentence is only applicable to count 2. I will deal with this further below. Count 2 (for murder committed during an attempted robbery) [47]    The other charge whose formulation is criticised is that of murder said to have been committed during an attempted robbery  (i.e. count 2), phrased as follows in the material part: That the accused is/are guilty of MURDER In that … the accused did unlawfully and intentionally kill MBAFUDE HENDRICK MASEKO by SHOOTING AT HIM · *Section 51 and Schedule 2 of the Criminal Law Amendment Act 105 of 1997 , as amended by section 33 of Act 62 of 2000 and Section 36 of Act 12 of 2004 and further amended by Act 38 of 2007 is applicable in that · If accused is/are convicted of the above charge of part 1 Schedule 2, Section 51(1)(a) makes provision for a minimum sentence of life imprisonment. [27] [48]    The criticism against the formulation of count 2 for murder is on the basis that the charge sheet is unclear as to what rendered the murder offence to carry a life sentence. I agree. And, on the basis that, when the plea was put before the trial court the State confirmed to that court that the life sentence was applicable ‘[b]ecause [the murder] is committed by more than one person’. [28] I agree with counsel for the appellants that the latter assertion appears to be reference to Part 1(d) of Schedule 2 dealing with the offence of murder ‘ committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy’. Conclusion (on the formulation of counts 1 and 2) [49]    In the Judgment, the trial court mentioned that the appellants were informed of the application of the minimum sentence on both counts 1 and 2. But this wasn’t entirely correct and I will explain this below. [50] The trial court, indeed, during the plea stage and when sentencing the appellant did mention that the attempted robbery with aggravating circumstances under count 1 carried a minimum sentence of 15 years imprisonment. But, as stated above, no minimum sentence is prescribed for an attempted robbery under Schedule 2 of the CLAA . [29] Therefore, this constituted a misdirection on the part of the trial court warranting interference by this Court. I will return to this, below. [51]    T he trial court also found that the appellants were properly warned that the life sentence would be rendered applicable to count 2 by the attempted robbery envisaged by Part 1(c)(ii) of Schedule 2 of the CLAA. [30] But as stated above, this was not done in the charge sheet and when the appellants entered their plea to the charge. During the plea stage the appellants were actually informed that the minimum sentence of life imprisonment would be applicable due to more than one person being involved in committing the murder. But this neither appeared in the charge sheet. [52]    Appellants’ counsel submitted that this (mis)formulation of the charge is contrary to the provisions of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’) guaranteeing fair trial as the appellants were informed of different factors for the trigger of a life sentence at different stages of the proceedings. Support for the submission is derived from the decision in S v Msimango [31] where the SCA warned that the paucity or insufficiency of details in a charge to inform an accused when answering to the charge is inimical or ‘subversive of the notion of the right to fair trial contained in s 35(3) (a) of the Constitution’. [32] The SCA, further, held that section 35(3) is not merely formal but also substantive in nature, as it goes to the very heart of what constitutes a fair trial. [33] An accused ought to be provided with sufficient details for understanding the actual charge in order to answer the charge and defend him or herself in the trial, so as to guard against the mischief of trial by ambush. [34] [53]    The assertions as to an unfair trial, in my view, are not borne by what transpired before the trial court in this matter. To avoid doubt, I am mindful that the prerogative of drafting of charge sheets belongs to the public prosecution and that failure to discharge the duties arising from this role has significant consequences for the accused person and the public at large. [35] Therefore, any shortcomings, such as failure to alert an accused of the applicability of the prescribed minimum sentence or incorrectly referencing statutory provisions governing minimum sentences may impact on an accused’s right to fair trial as enshrined in the Constitution. [36] But in this matter the charges, viewed in their totality, clearly pointed out to the appellants that they were both accused of attempting to rob the deceased of his Camry and with the latter person ending up being killed by a firearm. In the end, the charge sheet which only stated under count 2 that the deceased was shot was established by the evidence which clearly established a botched robbery, although the latter was only stated in count 1. Any evidence led on count 1 was also relevant to count 2. I do not hear from the appellants that they would have advanced their defence to the charges differently, had charge 2 being formulated as they contend. Therefore, I do not agree that there was any unfair trial or even prejudice with the finding of the Court that the minimum sentence was triggered by the attempted robbery even if the charge sheet did not specify this. I am equally not convinced that the assertion by the presiding officer to the trigger as being the involvement of more than one person detracts from what I have just said. Whether the State proved that the appellants are guilty of attempted robbery with aggravating circumstances [54]    I have just dealt with the formulation of count 1 above. Under this part, count 1 features again as a self-standing ground of appeal for the reversal of the conviction of the appellants. It is contended on behalf of the appellants that the State failed to prove that they attempted to rob the deceased under circumstances aggravated by the use of a firearm. No evidence was placed before the trial court to establish that the appellants - upon their arrest - were found with anything stolen from the deceased, it is argued. The cell phones found when the appellants were arrested were not proven to belong to the deceased. The same applies to the Camry. For, it is not the only inference the trial court could have made that the appellants wanted to rob the deceased. [55]    Counsel for the State pointed out that, the appellants admitted: (a) that, the deceased’s cause of death was a gunshot wound to the head or skull; (b) the content of the post-mortem report; (c) the chain-of-custody regarding the body of the deceased; (d) that the blood spatters on their clothes – upon their arrest - was the blood of the deceased, and (e) that, their fingerprints were found on the outside of the Camry in which the deceased was killed. But they deny that they killed the deceased. Further, it was proven by the State, that: (i) the appellants were in the Camry when two shots were fired; (ii) the shots went off when the Camry went over a speed bump; (iii) the appellants ran from the Camry once it came to a halt; (iv) the second appellant had a firearm with him upon arrest, and (e) the deceased was killed with a gunshot from a firearm. These when viewed in their totality clearly establish beyond reasonable doubt that the appellants attempted to rob - through the means of a firearm - the deceased of the Camry he was driving (and, thus, in his lawful custody) when he was killed, it is submitted. [56]    Although count 1 was for attempted robbery, I find the following from the learned author of Hiemstra's Criminal Procedure [37] regarding the crime of robbery, quite aidful for current purposes: When the accused threatens the complainant with bodily injury in order to obtain possession of something belonging to the complainant or in the lawful custody of the complainant, and the complainant hands it over to avoid injury, the accused is guilty of robbery. [38] [57]    I agree that the offence of attempted robbery through the use of a firearm was established by the evidence before the trial court. I do not agree with the submissions on behalf of the appellants that there is no evidence that the deceased was in ‘lawful custody’ of the motor vehicle. And with his shooting the inference drawn by the trial court from proven facts that the appellants intended to rob him of the vehicle is consistent with all the proved facts, which facts exclude every other reasonable inference from them save for the aforesaid. [39] Briefly put, the proven facts before the trial court and inferences by that court were to the effect that: (a) the deceased was shot at the back of his head whilst driving the Camry; (b) an eyewitness heard the shots going off before the Camry came to a standstill; (c) the appellants, with the deceased’s blood on their clothes, were seen running out of the Camry; (d) the appellants were found hiding in the bushes in the vicinity; (e) the second appellant had a firearm when he was apprehended and it was inferred that he sat behind the deceased who was driving the Camry and shot him from where he was seated; (f) the deceased was in lawful custody of the Camry, and (g) it was inferred that the appellants wanted to rob him of the Camry. Therefore, considering all these, I am satisfied that, despite my adverse finding on the applicability of the minimum sentence regime, this count was proven beyond reasonable doubt and, thus, the conviction of the appellants thereon was befitting. [58]    I am also convinced that although the second appellant possessed the firearm, both appellants acted with common purpose in relation to this count and that the requisites of this doctrine as set out in S v Mgedezi were met. I disagree with counsel for the appellants that only two of the requirements were met, being that: (a) the first appellant was present at the scene during the commission of the violence, and (b) the first appellant was aware of the assault. The facts and reasonable inferences competent therefrom – in my view – clearly established the remainder of the requirements, that the first appellant: (c) had an intention to make common cause with the second appellant to threaten the deceased with bodily harm through the use of firearm in possession of the second appellant; (d) manifested that he shared a common purpose with the second appellant by remaining in the vehicle with him and running away with him from the scene of the crime after the deceased was shot and killed, as acts of association with the second appellant’s conduct, and (e) had the necessary mens rea to rob the deceased and acted in association with the recklessness attached thereto. [40] I agree with counsel for the State that the circumstantial evidence considered by the trial court in this regard is overwhelming and that such evidence is not essentially evidence of a lesser value. Further, that such evidence ought to be assessed holistically and not in isolation or segments. Overall, regard ought to be had to the cumulative effect of the evidence in proving (beyond reasonable doubt) the charges an accused is facing. [41] I am satisfied of the trial court’s approach to the evidence before it. Whether the State proved that the appellants committed murder whilst attempting to execute robbery with aggravating circumstances [59]    Under count 2, the appellants were charged with murder in terms of the provisions of section 51(2) of the CLAA, but no further details were provided. I dealt with the formulation of this charge above and the criticism levelled against same by the appellants. [42] [60]    But as with count 1 (for aggravated robbery), I find the count for murder established. I agree with counsel for the State that this count against the appellants was proven beyond reasonable doubt, based on the following: (a) the deceased was shot at the back of his head; (b) an eyewitness Mr James heard the shots going off before the Camry came to a standstill; (c) the deceased was found in the Camry; (d) the appellants were seen instantaneously exiting the Camry; (e) the second appellant was found with a gun; (f) the deceased’s blood – which came from the gunshots, as no other injuries were recorded – was found on the appellants’ clothes; (g) Mr James, the eyewitness, saw one of the appellants exciting from the back door of the driver’s side of the Camry; (h) it can be inferred that the second appellant sat behind the deceased who was driving the Camry and that he shot the deceased from where the second appellant was seated; (i) the second appellant had sat there to be able to take the shot and murder the deceased; (j) the second appellant was found in possession of the loaded firearm, which was also ready to fire; (k) the serial number of the firearm found in the possession of the second appellant had been obliterated, and (l) the firearm also had six live rounds of ammunition in the magazine and one live round in the chamber. [61]    I have stated above that, I agree with the trial court’s finding that the trigger for the minimum sentence of life imprisonment was the attempted robbery even if the charge sheet did not include this specificity. And for the same reasons as count 1, I find that the first appellant associated with the second appellant to confirm his sharing of common purpose with him to murder the deceased. Therefore, I agree with the finding of the trial court that it was proven that the appellants committed murder whilst attempting to execute robbery with aggravating circumstances. It follows that there was no misdirection by that court in this regard or one which would constitute a failure of justice justifying intervention by this Court. [43] Therefore, this ground of appeal would fail. Whether the appellants acted jointly regarding the prohibited firearm [62]    Another ground pivoting this appeal is that the trial court misdirected itself in respect of the application of the doctrine of common purpose on the possession of a prohibited firearm, due to serial number or other identifying mark having been changed or removed without the written permission of the Registrar. This charge is based on section 4(1)(f)(iv) of the FCA. [44] [63]    Counsel for the appellants submitted that the evaluation of the evidence regarding the unlawful possession of a prohibited firearm and ammunition by the trial court was incorrect. According to him the correct approach was for that court to determine whether the evidence before it established joint possession by the appellants of the prohibited firearm and ammunition. The Judgment, it is further submitted, confirms that the trial court’s finding that the second appellant is linked to the firearm, but it is silent on whether the first appellant knew that the second appellant had a firearm with him on the day of the crimes. This falls short in establishing the twofold requirements of possession, namely that: (a) the first appellant intended to exercise possession of the firearm through the second appellant, as the actual detentor, and (b) the detentor intended to hold the firearm on behalf of the first appellant. [45] Fulfilment of these requirements, it is also submitted, would render the doctrine of common purpose competent in respect of counts 3 and 4 should the evidence establish (or allow a probable inference to be drawn) that the first and the second appellants shared a common state of mind, being the unlawful possession of a prohibited firearm and ammunition. No such evidence was before the trial court to allow such inference to be drawn, the submission concluded. [64] The principle of joint possession of firearm or armament and doctrine of common purpose is eloquently narrated by Nugent JA in S v Mbuli [46] as appearing in the following dicta : [71] What is prohibited by both those sections is the existence of a state of affairs (ie having possession of an armament, or a firearm, as the case may be) and a conviction will be competent only if that state of affairs is shown to exist. That state of affairs will exist simultaneously in respect of more than one person if they have common (or joint) possession of the offending article. Their  contravention of the relevant section in those circumstances does not arise from an application of the principles applicable to common purpose (which is concerned with liability for joint activity) but rather from an application of ordinary principles relating to joint possession. Common purpose, and joint possession, both require that the parties concerned share a common state of mind but the nature of that  state of mind will differ in each case. Perhaps Olivier JA had in mind the principles of joint possession, rather than the doctrine of common purpose, when he said in S v Khambule 2001 (1) SACR 501 (SCA) at para [10] that there is no reason in principle why a common intention to possess firearms jointly could not be established by inference, but I do not agree with the further suggestion that a mere intention on the part of the group to use the weapons for the benefit of all of them will suffice for a conviction. In my respectful view, Marais J set out the correct legal position (apart from a misplaced reference to common purpose) when he said the following in S v Nkosi 1998 (1) SACR 284 (W) at 286 h - i : 'The issues which arise in deciding whether the group (and hence the appellant) possessed the guns must be decided with reference to the answer to the question whether the State has established facts from which it can properly be inferred by a Court that: (a) the group had the intention ( animus ) to exercise possession of the guns through the actual detentor and (b) the actual detentors had the intention to hold the guns on behalf of the group. Only if both requirements are fulfilled can there be joint possession involving the group as a whole and the detentors, or common purpose between the members of the group to possess all the guns.' [72] In the present case the trial court found, as a matter of inference, that those requirements had been fulfilled in respect of all  the accused in relation to the hand grenade. … It is equally possible that, like the pistols, the hand grenade was possessed by only one of the accused. Mere knowledge by the others that he was in possession of a hand grenade, and even acquiescence by them in its use for fulfilling their common purpose to commit robbery, is not sufficient to make them joint possessors for purposes of the Act. [65]    What appears above was significantly based on a decision of the then Witwatersrand Local Division in S v Nkosi [47] by Marais J and restated, against a comparative study of other cases, by Joffe J of the same division in Motsema v S . [48] [66]    In the appeal before this Court, I am not satisfied that the first appellant had jointly possessed the firearm and ammunition, both found in the second appellant’s possession. This notwithstanding my findings that the first appellant met the requirements of common purpose in respect of the attempted robbery and murder where the same firearm was used. But, as eloquently explained by Nugent JA in S v Mbuli , quoted above, although it concerned different legislation, the prohibition for possession of a firearm would only result in a conviction only where ‘that state of affairs is shown to exist’ (i.e. possession of a firearm) in respect of an accused. [49] Such state of affairs would ‘exist simultaneously in respect of more than one person if they have common (or joint) possession of the offending article’, and not from ‘an application of the principles applicable to common purpose (which is concerned with liability for joint activity) but rather from an application of ordinary principles relating to joint possession’. [50] Therefore, the first appellant’s appeal against his conviction on counts 3 and 4 will be upheld. There is no merit in the appeal by the second appellant on these counts. Sentences imposed by the trial court (and implications of the findings made) [67] The first and second appellants also appeal against the sentences imposed by the trial court, respectively on them. The first appellant was sentenced to an effective imprisonment of 24 years and the second appellant to an effective sentence of 28 years’ imprisonment. The findings of this Court already made have a bearing on the sentences. [68]    On count 1, the trial court incorrectly considered the offence of attempted robbery with aggravating circumstances to carry a minimum sentence of 15 years’ imprisonment. I have found this to be a misdirection on the part of that court warranting interference by this Court. But not everything done by the trial court when imposing the aforesaid sentence is tainted by the irregularity found. The trial court had considered the personal and other circumstances of each of the appellants, although the focus then was that these are factors constituting substantial and compelling circumstances to deviate from imposing the 15 years’ minimum sentence. Some of this material will be useful in this Court. I will revert to this below. [69]    Regarding Count 2 for murder, I have found no material irregularity constituting a misdirection by the trial court. This means that the prescribed minimum sentence for life imprisonment remains applicable. The trial court found substantial and compelling circumstances existent, to deviate from the prescribed minimum sentence and imposed a sentence of 24 years’ imprisonment. I will also revert to this below, particularly the trial court’s consideration of the appellants’ substantial and compelling circumstances. [70]    The trial court sentenced both appellants on count 3, for unlawful possession of firearm, to 5 years’ imprisonment, and on count 4, for unlawful possession of ammunition, to 1 year imprisonment. I have ruled that the conviction of the first appellant on these counts was improper and, therefore, it would be set aside. I see no reason to interfere with the sentences imposed on the second appellant on these counts. [71]    Overall, the trial court ordered the concurrent running of some or all of the sentences imposed on the appellants to come to the different tally of 24 years’ effective imprisonment for the first appellant and of 28 years’ effective imprisonment for the second appellant. [72]    The trial court had considered the following personal circumstances of the first appellant, that: (a) he was 43 years old; (b) he came from Katlehong; (c) his father, mother and five of his siblings had passed away; (d) he only has a brother left; (e) he was raised in a lower socio-economic family background; (f) he passed grade 11 at school; (g) he then survived by selling fruit and vegetables in the neighbourhood; (h) he did not abuse alcohol or drugs; (i) his health was good; (j) he was shot previously in an unrelated incident and had pain sometimes; (k) he has a previous conviction for possession of a firearm in 1995, and (l) he has no remorse. [73]    The personal circumstances of the second appellant considered by the trial court were that: (a) he was 38 years old; (b) he came from Katlehong and was, originally, from Soweto; (c) his parents raised him till their divorce at age 3; (d) his mother raised him and his siblings as a single mother; (e) he did not take part in crime, alcohol and drugs; (f) he passed grade 10 at school; (g) he was temporarily employed at Biscuit King in Germiston; (h) in 2002 he was sentenced to 12 years for armed robbery and released in 2009; (i) he has a 14 year old daughter who stays with her mother, and (j) he has a good relationship with his family. [74]    Counsel for the appellants submitted that the period during which the appellants were incarcerated whilst waiting for the matter to be finalised, ought to be considered for purposes of sentencing, as our courts continuously hold. [51] The trial court – indeed - took into account the fact that the appellants were incarcerated for a period of 5 years and 6 months. It found that the delays  resulted from a change of legal representatives by the first appellant, which was for about a year. But, it is submitted that there were other contributors to the delay - not attributable to the appellants – which were not seriously considered by the trial court. For, there was a period of almost a year of waiting for the transcripts which were to be provided to the two appellants. This, though, was mentioned by the trial court. But it is submitted that the state organs caused the delay and the transcript were required by the appellants to enable them to exercise their rights to defend themselves. [75]    The trial court also mentioned the following causes of the delays: (a) pre-sentence reports which remained outstanding for months; (b) termination  of the contract for the presiding officer in March 2016; (c) unavailability of the presiding officer, and (d) unavailability of the prosecutor after transfer to another court. It is the appellants’ view that the trial court only paid lip service to the resultant time the appellants spent in custody awaiting finalisation of their trial, as it only reduced the minimum sentence of 15 years on count 1 by one year. Considering that the awaiting trial incarceration was for a period of 5 years and 6 months, the reduced period is disproportionate, it is submitted. The trial court deviated from the minimum sentences, including on consideration of the time the appellants spent in jail awaiting finalisation of their trial. It held that cumulatively the factors constituted substantial and compelling circumstances to justify the deviation. It is also submitted on behalf of the State that the sentences imposed by the trial court are appropriate and befit the extremely serious offences committed by the appellants. The deceased was murdered in cold blood for sheer greed and, both appellants have shown no remorse. Therefore, the aggravating circumstances in the matter outweigh the appellants’ personal circumstances, the submission concluded. [76]    Sentencing is pre-eminently within the discretion of a trial court and a court at the appellate level will not interfere lightly with the trial or lower court’s exercise of  discretion. [52] For, it is the lower or trial court and not the court of appeal which enjoys the advantage of seeing and hearing the witnesses and, thus, best placed to determine the truth. [53] The Constitutional Court in S v Bogaards [54] has aidfully held that interference may be warranted where: (a) there was an irregularity which resulted in a failure of justice; (b) misdirection of such a degree that the lower court’s decision on sentence is vitiated, or (c) disproportionate or shocking sentence which no reasonable court could have imposed it. [55] [77]    At the appellate level, essentially, the inquiry by a court on sentencing is not whether the sentence was right or wrong, but rather whether the lower court’s exercise of its sentencing discretion was proper and judicial. [56] A mere misdirection does not of itself suffice to warrant an appellate court’s interference, unless it is ‘of such a nature, degree, or seriousness that it shows, directly or inferentially, that the court did not exercise its discretion at all or exercised it improperly or unreasonably’. [57] [78]    I agree with counsel for the State that the crimes for which the appellants were convicted by the trial court are very serious crimes of a heinous nature. This was also the view of the trial court. It embarked on a delicate exercise of balancing competing interests - inherent in the sentencing exercise - quite mindful of the personal circumstances of the appellants and the other factors qualifying as substantial and compelling circumstances. [58] [79]    But I think the delay of almost six years spent by the appellants in jail waiting for the proceedings before the trial court to unfold is considerably long. It ought to have had a slightly bigger impact on the sentences imposed than the trial court afforded it. This is not to overlook that the appellants role which contributed to the delay in the finalisation of the trial and, thus, prolonged their stay in jail. I have in mind their request for a transcript of the proceedings – mid-trial – but, they were not wrong in doing so. They, equally, were not to blame for the contractual changes of the presiding officer and the geographical relocation of the public prosecutor. These were factors beyond their control constituting a significant part of the period of 5 years and 6 months the appellants spent in jail before the conclusion of the proceedings before the trial court. In my view, the above constitutes a misdirection of the nature, extent or seriousness as that envisaged in S v Pillay showing directly or inferentially that the trial court in this regard did not exercise its discretion properly or reasonably. [59] I am also mindful that it is not a proper or cognisable approach to misdirection to grade a factor as heavyweight or lightweight, save where there is digression which through its serious or unreasonable nature clearly reveals failure to exercise proper discretion on the part of the trial court. [60] There is such digression. [80]    Bearing the above in mind, I will propose that the sentence of 24 years imprisonment (which was arrived at by the trial court in deviation from the mandatory life imprisonment for the count of murder) be further reduced by another two years to 22 years imprisonment. [81]    On count 1, which does not have a minimum sentence, I will consider what appears above to be mitigating factors to propose that the appellants be sentenced to incarceration for a period 10 years. Attempted robbery remains a very serious crime and the sentence imposed by the trial court is appropriately reflective of a blend of their gravity, the appellants’ personal circumstances and the expectation of the society . [61] Conclusion [82]    Bearing in mind what appears above, I will propose that the first appellant’s sentences be ordered as follows. Similarly to the trial court, I will propose that the sentence imposed on the first appellant for count 1 (now for 10 years’ imprisonment) run concurrently with the longer sentence imposed for count 2 for murder (now for 22 years’ imprisonment). This means that the first appellant is effectively sentenced to 22 years imprisonment. [83]    For the same reasons as the trial court, including the second appellant’s previous conviction for robbery, I will direct that only 6 years of the substituted sentence of 10 years’ imprisonment for count 1 run concurrently with the sentence imposed for count 2 for murder (i.e. 22 years’ imprisonment) and the unaltered sentences in respect of counts 3 to 4. This means that the second appellant should serve an effective sentence of 26 years’ imprisonment. [84]    Both appellants would remain declared unfit to possess a firearm in terms of section 103 of the FCA. And the substituted sentences will be antedated to 9 February 2018, the date of sentencing by the trial court. Order [85] In the result, I propose that the following order be made in respect of the first and second appellants, respectively: [85.1]  in respect of the first appellant: a)       the first appellant’s appeal against conviction in respect of counts 1 and 2 is   dismissed; b)       the first appellant’s appeal against conviction in respect of counts 3 and 4 is upheld; c)       the first appellant’s appeal against sentence imposed in respect of counts 1 and 2 is upheld to the extent set out in d) and e) below ; d)       the sentence of the Regional Court for the Regional Division of Gauteng, Pretoria is set aside and the following sentence is substituted for it antedated to 9 February 2018: “ 1. The first accused is sentenced to imprisonment as follows: (a)  10 years in respect of count 1, and (b)  22 years in respect of count 2. 2.     the sentence in count 1 shall run concurrently with the sentence in count 2.” e)       The effect of the order in d) hereof is that the first accused or appellant is sentenced to effective imprisonment for 22 years as at 9 February 2018. [85.2]  in respect of the second appellant: a)       the second appellant’s appeal against conviction in respect of counts 1, 2, 3 and 4 is  dismissed; b)       the second appellant’s appeal against sentence imposed in respect of counts 1 and 2 is upheld to the extent set out in c) and d) below ; c)       the sentence of the Regional Court for the Regional Division of Gauteng, Pretoria is set aside and the following sentence is substituted for it antedated to 9 February 2018 [and for completeness the unaltered sentences for counts 3 and 4 are also reflected]: “ 1. The second accused is sentenced to imprisonment as follows: (a)  10 years in respect of count 1; (b)  22 years in respect of count 2; (c)   5 years in respect of count 3, and (d)  1 year in respect of count 4. 2.     the 6 years of the sentence in count 1 and the whole sentence in counts 3 and 4 shall run concurrently with the sentence in count 2.” d)       The effect of the order in c) hereof is that the second accused or appellant is sentenced to effective imprisonment for 26 years as at 9 February 2018. K. La M. Manamela Acting Judge of the High Court I agree and it is so ordered P Phahlane Judge of the High Court Date of Hearing               :                   9 September 2025 Date of Judgment            :                   31 December 2025 Appearances : For the Appellants             : Adv R Du Plessis Legal Aid South Africa, Pretoria For the Respondent/State : Adv JP Conradie Director of Public Prosecutions Gauteng Division, Pretoria [1] Par [34] below on what robbery executed with aggravating circumstances entails. [2] The charge sheet did not specify that the murder was committed in the execution of a robbery, although this was the finding of the Trial Court. The appellants actually criticised the formulation of count 2. See pars [27.2], [47]-[53] below. [3] Pars [23]-[25] below for details on the sentences imposed by the trial court. [4] Pars [34]-[37] below for a reading of section 51(2) and Part II of Schedule 2, both of CLAA, in the material part. [5] Par [37] below for a reading of Part II of Schedule 2 of CLAA, in the material part. [6] S v Malgas 2001 (1) SACR 469 (SCA). [7] S v Malgas 2001 (1) SACR 469 (SCA) [20], [25]; S v Mlota 2025 (2) SACR 197 (GP) [32]; S v Habib (2) 2025 (2) SACR 292 (GJ) [29]-[33]. [8] Record Vol 3, p 839 and generally pp 837-839. See Director of Public Prosecutions North Gauteng: Pretoria v Gcwala and Others (295/13) [2014] ZASCA 44 ; 2014 (2) SACR 337 (SCA) (31 March 2014) [28]; Radebe and Another v S (726/12) [2013] ZASCA 31 ; 2013 (2) SACR 165 (SCA) (27 March 2013) [14]. [9] S v Guess 1976 (4) SA 715 (A) at 718F-719A. [10] Record Vol 3, p 820 line 23. [11] Record Vol 3, p 820 lines 20-21. [12] S v Van der Meyden 1999 (1) SACR 447 (W) at 449j-450c. [13] Section 1(1)(b) of the CPA. [14] Section 4(1)(f)(iv) of the FCA. [15] Section 280(2) of the CPA [16] Stephan Terblanche (editor), Du Toit: Commentary on the Criminal Procedure Act (Juta , 2025) (‘ Du Toit: Criminal Procedure Act ’) RS 69, 2022 ch22-p42X, relying on Shange & others v S [2017] 3 All SA 289 (KZP) [45]; T shikila and Others v Minister of Police (16/06499) [2019] ZAGPJHC 174 (23 April 2019) [12]; Sithole and Another v S (A777/15) [2017] ZAGPPHC 169 (20 February 2017) [24]. [17] Du Toit: Criminal Procedure Act RS 69, 2022 ch22-p42X. See also Shange v S [2017] 3 All SA 289 (KZP) [45]; S v Sithole [2017] ZAGPPHC 169 [24]; Tshikila v Minister of Police [2019] ZAGPJHC 174 [12]. [18] Du Toit: Criminal Procedure Act RS 71, 2023 ch22-p42Y. S ee also S v Safatsa & others 1988 (1) SA 868 (A) ; S v Mgedezi & others 1989 (1) SA 687 (A) ; S v Singo 1993 (1) SACR 226 (A) . [19] S v Mgedezi And Others 1989 (1) SA 687 (A). [20] S v Mgedezi 1989 (1) SA 687 (A) at 705-706. See also Du Toit: Criminal Procedure Act RS 71, 2023 ch22-p42Z. [21] S v Van Aswegen 2001 (2) SACR 97 (SCA) [8]; S v Shackell 2001 (4) SA 1 (SCA) [30]; S v Selebi 2012 (1) SA 487 (SCA); S v Mbuli 2003 (1) SACR 97 (SCA) A [57] . [22] S v Hadebe and Others 1998 (1) SACR 422 (SCA) at 426F-H; S v Mbuli 2003 (1) SACR 97 (SCA) [57]. [23] S v Guess 1976 (4) SA 715 (A) at 718-719. [24] S v Abrahams 1979 (1) SA 203 (A). [25] Record Vol 1, p1 lines 12 to 25; annexure “A”, also marked B in manuscript (no page numbering). [26] Pars [34]-[37] above for a reading of section 51 and Schedule 2 of the CLAA in the material part. [27] Record Vol 1, p 2 lines 12 to 25 and p 3 lines 1 to 3; annexure “B”, also marked C in manuscript (no page numbering). [28] Record Vol 1 p 3 lines 2-3. [29] Par [37] above for a reading of Part II of Schedule 2 of the CLAA in the material part. [30] Record Vol 3, p 794 at lines 7 to 16. [31] S v Msimango 2018 (1) SACR 276 (SCA) . [32] S v Msimango 2018 (1) SACR 276 (SCA) [15] . [33] S v Msimango 2018 (1) SACR 276 (SCA) [16] . [34] Ibid. [35] Du Toit: Criminal Procedure Act RS 70, 2023 ch14-p2 and the authorities cited there. [36] Ibid [37] Albert Kruger, Hiemstra's Criminal Procedure (LexisNexis, 2025) (‘ Hiemstra's Criminal Procedure ’ ). [38] Hiemstra's Criminal Procedure at 26-15. [39] R v Blom 1939 AD 188 on 202-203; S v Nkosi 1998 (1) SACR 284 (W) 287B. [40] S v Mgedezi 1989 (1) SA 687 (A) at 705-706. See also Du Toit: Commentary on the Criminal Procedure Act RS 71, 2023 ch22-p42Z. [41] S v Ntsele 1998 (2) 178 (SCA) at 182. [42] Pars [47] et seq above. [43] S v Livanje 2020 (2) SACR 451 (SCA) [23]-[25]. [44] Par [38] above on section 4(1)(f)(iv) of the FCA. [45] S v Mbuli 2003 (1) SACR 97 (SCA) [70]-[72]; S v Kwanda 2013 (1) SACR 137 (SCA) [5]. [46] S v Mbuli 2003 (1) SACR 97 (SCA) . [47] S v Nkosi 1998 (1) SACR 284 (W) 286G-I, 288H to 289I. [48] Motsema v S [2011] JOL 28089 (GSJ) (23 November 2011) [15]-[23]. [49] S v Mbuli [71]. [50] Ibid . [51] S v Radebe And Another 2013 (2) SACR 165 (SCA) [13]- [14]. [52] Cele v S (681/2024) [2025] ZASCA 199 (19 December 2025) [17]; S v Motloung 2016 (2) SACR 343 (SCA) [6]-[8]; S v Dhlumayo 1948 (2) SA 677 AD 680-681. [53] S v Francis 1991 (1) SACR 198 (A) at 204. [54] S v Bogaards 2013 (1) SACR 1 (CC). [55] S v Bogaards 2013 (1) SACR 1 (CC) [41]; Cele v S (681/2024) [2025] ZASCA 199 (19 December 2025) [18]-[19]. [56] Cele v S [2025] ZASCA 199 [17], relying on S v Pillay 1977 (4) SA 531 (A) at 535E-F. [57] S v Pillay 1977 (4) SA 531 (A) at 535E-F; Cele v S [2025] ZASCA 199 [18], [23]. [58] Cele v S [2025] ZASCA 199 [23], [32]. [59] Cele v S [2025] ZASCA 199 [23]. [60] Cele v S [2025] ZASCA 199 [21]. [61] Cele v S [2025] ZASCA 199 [32]. sino noindex make_database footer start