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Motshwarakgole and Others v S (CA&R 50/23) [2025] ZANCHC 7 (31 January 2025)

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THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION KIMBERLEY)

         

CASE NO: CA&R 50/23


In the matter between:

 

MOTSHWARAKGOLE, LESEDI VIRGINIA                              First Appellant

 

MOTSHWARAKGOLE, BOITSHEPO                                  Second Appellant

 

MABOGOLE, SIMON KENNETH                                            Third Appellant

 

and

 

THE STATE                                                                                  Respondent

 

Neutral citation: Motshwarakgole and Others v The State (Case No. CA&R 50/23) (31 January 2025)


Coram:        Williams J et Nxumalo J


Heard:          29 July 2024


Delivered:    31January 2025


Summary:    Trial in the Court a quo commenced without assessors as contemplated in Section 93ter (1) of the Magistrates’ Courts Act 32 of 1944—murder and other offences—life imprisonment and other determinate sentences-automatic right to appeal—Section 309(1)(a) of the CPA—scope of application and limitation—appeal upheld—convictions and sentences set aside.

 

 

 

ORDER

 

 

1.               The appeal is upheld and the impugned convictions and sentences are set aside.

2.               The decision to institute prosecution de novo in terms of Section 324 of the Criminal Procedure Act 51 of 1977,[1] is left to the Director of Public Prosecutions for this Division. 

 

 

JUDGMENT

 

Per: Nxumalo J (Williams J concurring)

 

INTRODUCTION:

 

[1] The first appellant was convicted in the Magistrate Regional Court at Kudumane,   Northern Cape of the following: Count 1- Kidnapping; Count 2- Kidnapping; Count 3- Kidnapping; Count 4- Murder contra Section 51(1) of the Criminal Law Amendment Act 105 of 1997;[2] Count 5- Attempted Murder; Count 6- Attempted Murder; and Count 9- Failure to lock away a firearm in a prescribed safe contra Section 120(8)(a) of the Firearms Control Act 60 of 2000.[3]  On 06 July 2020 she was subsequently sentenced as follows: Count 1: 6 (six) years imprisonment; Count 2: 6 (six) years imprisonment; Count 3: 6(six) years imprisonment; Count 4: Life Imprisonment; Count 5: 10 (ten) years imprisonment; Count 6: 10 (ten) years imprisonment; and Count 9: 5 (five) years imprisonment. 

 

[2] The second appellant was similarly convicted and sentenced by the said Court on the said dates, as follows: Count 1 (Kidnapping)- 6 (six) years imprisonment; Count 2 (Kidnapping)- 6 (six) years imprisonment; Count 3 (Kidnapping)- 6 (six) years imprisonment; Count 4 (Murder contra Section 51(1) of Act 105 of 1997)- Life Imprisonment; Count 5 (Attempted Murder)- 10 (ten) years imprisonment; Count 6 (Attempted Murder)- 10 (ten) years imprisonment; and Count 8 (Reckless endangerment to person or property)- 5 (five) years imprisonment.

 

[3] The third appellant was also similarly convicted and sentenced as follows: Count 1 (Kidnapping)- 6 (six) years imprisonment; Count 2 (Kidnapping)- 6 (six) years imprisonment; Count 3 (Kidnapping)- 6 (six) years imprisonment; Count 4 (Murder contra Section 51(1) of Act 105 of 1997)- Life Imprisonment; Count 5 (Attempted murder)- 10 (ten) years imprisonment; Count 6 (Attempted murder)- 10 (ten) years imprisonment; and Count 7 (Contravention of Section 120(3)(b) of Act 60 of 2000)- 5 (five) years imprisonment.

 

[4] The appellants subsequently, albeit belatedly, delivered their notices to appeal their convictions and sentences on 01 February 2021 as well as their application for condonation for the late filing thereof.  The appellants contemporaneously delivered their applications for leave to appeal same.  On 03 August 2021 they were subsequently only granted leave to appeal their convictions and sentences with regard to count 4 i.e.  life imprisonment for murder contra Section 51(1) of Act 105 of 1997.  The remainder of their applications were dismissed. 

 

[5] The appellants also applied for bail pending the outcome of the appeal and their automatic right to appeal.  This application was dismissed by the Court a quo on 07 September 2021.  They thereafter appealed the refusal of their bail application.  On 13 January 2023 this Court per Mamosebo J, set aside the said refusal of bail and granted bail. 

 

[6] It is common cause that the trial in the Court a quo commenced without assessors as contemplated in Section 93ter of the MAGISTRATES’ COURTS ACT 32 of 1944.  It is also common cause that this issue was only canvassed during the testimony of the second witness, whereafter the appellants purportedly waived their rights to be tried by a judicial officer assisted by two assessors.  It is also so that the record is incomplete for the proper reappraisal of the appeal on the merits. 

 

Preliminary issues:

 

[7] Two preliminary issues fall for determination; to wit: (a) whether this Court should condone the late filing of this appeal; and (b) whether the record, which is incomplete, is nevertheless sufficient to determine the appeal; regard being had of the issues for determination.  The preliminary issues are determined in turn.

 

Whether this Court should condone the appellants’ late delivery of their appeals:

 

[8] It is trite that a party seeking condonation must make out a case entitling it to the Court’s indulgence.  For it to succeed, it must show sufficient cause.  This requires a party to give a full explanation for the non-compliance with the rules or the Court’s directions.  It is also of great significance that the explanation must be reasonable enough to excuse that default.[4]

 

[9] The third appellant has submitted that the matter is of high importance as he has been sentenced to the ultimate sentence of life imprisonment.  Same applies to the remainder of the appellants.  The third appellant also averred that neither the trial Court nor, his legal representatives explained his right to appeal his convictions and subsequent sentences.  The appeal process was also not explained to him.  His family had to appoint private legal representatives to advise and assist the appellant with regard to his appeal.  His legal representatives struggled to have the record which consisted of more than 1 000 pages transcribed and that the late filing of the notice of appeal was not his fault. 

 

[10]         It is so that when an application for condonation is considered, the Court has to exercise a judicial discretion upon a consideration of all relevant factors.  Factors such as the degree of non-compliance, the explanation for the delay, the prospects of success, the importance of the case, the nature of the relief, the interests in finality, the convenience of the Court, the avoidance of unnecessary delay in the administration of justice and the degree of negligence of the persons responsible for non-compliance are considered.  These factors are interrelated, for example, good prospects of success on appeal may compensate for a bad explanation for the delay.[5] 

 

[11]         The respondent did not oppose the application for condonation.  It was submitted that it will be in the interests of justice if condonation is granted because the matter is of high importance and the appellants have good prospects of success.

 

[12]         Having considered all relevant factors, I am of the opinion that the parties have furnished good reasons for the delay in lodging this appeal and that the delay is not inordinate.  I am also of the opinion that the prospects of success in this appeal are reasonable and that the respondent is not prejudiced, nor is this Court inconvenienced.  The application for condonation is therefore granted. 

 

Whether the record is sufficient to determine the appeal:

 

[13] The parties have all submitted that, regard being had to the issues falling for determination in this appeal, the record is sufficient.  I am of the opinion that the record as it is, suffices for the determination of this appeal. 

 

Issues for determination:

 

[14] At issue in this appeal is therefore (a) whether the Court a quo was properly constituted; and (b) whether the automatic right to appeal in terms of Section 309(1)(a) of the CRIMINAL PROCEDURE ACT 51 of 1977 (“the CPA”), extends to other offences for which a convict was charged, but for which life imprisonment has not been imposed.  Each of these is now adjudicated in turn.

 

Whether the Court a quo was properly constituted:

 

[15] As alluded to above, it is common cause that the provisions of Section 93ter of the MAGISTRATES’ COURTS ACT were not followed.  The trial started without assessors.  The said Section expressly stipulates as follows:

 

(1)     The judicial officer presiding at any trial may, if he deems it expedient for the administration of justice-

(a)             before any evidence is led; or

(b)             in considering a community- based punishment in respect of any person who has been convicted of any offence, summon to his assistance any one or two persons who, in his opinion, may be of assistance at the trial of the case or in the determination of a proper sentence, as the case may be, to sit with him as an assessor or assessors: Provided that if an accused is standing trial in the Court of a regional division on a charge of murder, whether together with other charges or accused or not, the judicial officer shall at that trial be assisted by two assessors unless such an accused requests that the trial be proceeded with without assessors, whereupon the judicial officer may at his discretion summon one or two assessors to assist him.”[6]

 

[16] It was submitted for the first and second appellant, by Mr Letsie, that the Court a quo was not properly constituted as the issue of assessors was only raised after the appellants had already pleaded to all the charges and that same was only raised by the prosecutor during the examination-in-chief of the second witness, one Ms Lee-Ann Kemp.  That the prosecutor thereafter approached both counsel for the defence and informed them that he forgot to bring the issue to the attention of the Court a quo timely.  The defence thereupon informed the Court a quo that they will not need assessors.

 

[17] The first and second appellants contended that such “waiver” does not cure the irregularity because the provisions of the MAGISTRATES’ COURTS ACT are very clear that the issue of assessors has to be canvassed before any plea is entered.  That the said Section lays the foundation for the presence of assessors, the rights of the accused and the powers of the Court a quo.  The third appellant submitted that by not sitting with assessors in a murder case where the appellants did not specifically request prior to the commencement of the trial that it proceed without assessors, this vitiates the whole proceedings.  Furthermore, that as stated in S v Gayiya 2016 (2) SACR 165 (SCA), the appellant cannot waive this right during the trial.

 

[18] On behalf of the State, Mr Rosenberg conceded that the Court a quo indeed failed to explain the provisions of the applicable Section to the appellants prior to them pleading and that the matter only came up during the testimony of the said witness.  That after the prosecutor recorded the omission, the Magistrate also conceded that same was an oversight on her part as well. 

 

[19] It is clear from a cursory reading of the said Section that what is required is that the accused be informed of the proviso “before any evidence has been led” and not “before any plea is entered” as contended for the first and second appellants.  Nevertheless, in Director of Public Prosecutions, Kwazulu-Natal v Pillay 2023 (2) SACR 254 (SCA)[7], the SCA observed that in a case where the trial Court had informed the accused of the proviso only after he had already pleaded, the appeal Court correctly held that the Magistrate was required to inform the accused of the proviso before the trial commenced.  It held that the irregularity was sufficient to set aside the impugned conviction and sentence.

 

[20] In Gayiya (supra) it was held that the appointment of assessors was peremptory, unless the accused requests, prior to pleading to a charge of murder, that the trial should proceed without assessors.  That Court said the following:

 

[8]     In my view the issue in the appeal is the proper constitution of the Court before which the accused stood trial.  The section is peremptory.  It ordains that the judicial officer presiding in a regional Court before which an accused is charged with murder (as in this case) shall be assisted by two assessors at the trial, unless the accused requests that the trial proceed without assessors.  It is only where the accused makes such a request that the judicial officer becomes clothed with a discretion either to summon one or two assessors to assist him or to sit without an assessor.  The starting point, therefore, is for the regional magistrate to inform the accused, before commencement of the trial, that it is a requirement of the law that he or she must be assisted by two assessors, unless he (the accused) requests that the trial proceed without assessors.” (emphasis supplied)

 

[21] The SCA then concluded as follows at paragraph [11]:

 

In the present matter, the quorum prescribed by the proviso to subsection (1) of s 93ter of the Magistrates’ Courts Act was three members, namely the regional magistrate and two assessors, unless the accused had requested that the trial proceed without assessors, in which event in his discretion the regional magistrate could, sitting alone, have constituted a quorum.  No such request was made by the accused.  The fact that the accused, when informed of his right to assessors only after the guilty verdicts, indicated that he did not require assessors and that he would only do so at the sentencing stage, did not cure the deficiency.  It follows that the Court that tried and convicted the accused was not properly constituted.  That defect could not be waived by the accused at the time that he purportedly did so, or cured by the subsequent proceedings before the Court below.  Counsel for the State did not argue otherwise.  The appeal must accordingly be upheld.” [8]

 

[22] I am of the opinion that to the extent that it is common cause that indeed the Court a quo was not properly constituted, this amounts to an irregularity which is so vitiating that the convictions and consequent sentences amount to irregularities and therefore all fall to be set aside.  This appeal should therefore succeed on this ground alone. 

 

Whether the automatic right to appeal a conviction and sentence to life imprisonment in terms of Section 309(1)(a) of the CPA, extends to other convictions for which the appellants were convicted and sentenced to determinate sentences.

 

[23] As alluded to above, the appellants were all sentenced to life imprisonment in terms of Section 51(1) of Act 105 of 1997 on the count of murder (Count 4), and contemporaneously to various determinate sentences with regard to the remainder.  The Court a quo, whilst conceding that the conviction and sentence of life imprisonment engaged an automatic right to appeal, nevertheless held that same does not apply to the remainder of the convictions or sentences. 

 

[24] In light of the foregoing, the appellants were constrained to lodge bail applications, pending full applications for leave to appeal the impugned finding in the Court a quo.  That Court granted their applications only in respect of their sentences and refused same in respect of convictions.   It is so that the refusal of the appellant’s application for leave to appeal does not affect their automatic right to appeal. 

 

[25] Section 309(1)(a) of the CPA, expressly stipulates as follows:

 

309 Appeal from lower Court by person convicted -

(1)             (a) Subject to section 84 of the Child Justice Act, 2008 (Act 75 of 2008), any person convicted of any offence by any lower Court (including a person discharged after conviction) may, subject to leave to appeal being granted in terms of section 309B or 309C, appeal against such conviction and against any resultant sentence or order to the High Court having jurisdiction: Provided that if that person was sentenced to imprisonment for life by a regional Court under section 51 (1) of the Criminal Law Amendment Act, 1997 (Act 105 of 1997), he or she may note such an appeal without having to apply for leave in terms of section 309B: Provided further that the provisions of section 302 (1) (b) shall apply in respect of a person who duly notes an appeal against a conviction, sentence or order as contemplated in section 302 (1) (a).” (emphasis supplied)

 

[26] As alluded to above, it was in sum submitted for the appellants that the trial Court erred in refusing them leave to appeal against their convictions and sentences in all counts, except count 4, i.e. murder.  It was also submitted for the appellants that the said Court erred in holding that even though the appellants enjoyed an automatic right of appeal with regard to their convictions and sentences on the murder count for which they have been sentenced to life imprisonment, this right does not extend to the remainder for which they were sentenced to determinative sentences. 

 

[27] The State is in agreement with the appellants that the automatic right to appeal also extends to those charges for which life sentence was not imposed.  It also agrees with the third appellant’s contention that the contrary would invariably lead to an absurdity, especially where the conviction on all the charges are predicated against the same facts.

 

[28] The right to appeal is an inherent right of the accused’s fair trial entrenched in the Bill of Rights vide Section 35(3)(o) of the Constitution; to wit:[9] 

 

Every accused person has a right to a fair trial, which includes the right of appeal to, or review by, a higher Court.”

 

[29] In interpreting the Bill of Rights, a Court, Tribunal or forum must inter alia, promote the values that underlie an open and democratic society based on human dignity, equality and freedom.  Also, when interpreting any legislation and when developing the common law or customary law, every Court, Tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.[10]  The right of appeal may thus only be limited in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including those catalogued in Section 36(1) of the Constitution. 

 

[30] An expansive and contextual reading of Sections 309(1)(a) and 309B(1)(a) of the CPA shows that the subject of these provisions is “that person” and “a person” rather than the sentence itself.  The expression “…sentenced to imprisonment for life…”  for its own part is descriptive of the person seeking the appeal and not the sentence for which an automatic right to appeal is engendered.  I therefore cannot agree more with the third applicant’s submission vide Mr Steynberg, that just as in Ndlovu v S,[11] the said Sections both refer to a person seeking to appeal and not what is sought to be appealed.[12]  

 

[31] A narrow reading of Section 309(1)(a) on the other hand would not only restrict an accused’s automatic appeal to life sentence and the conviction against which it is predicated, but might also amount to an unreasonable and unjustifiable limitation in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including those catalogued in Section 36(1) of the Constitution.

 

[32]  A narrow reading would also not only unduly restrict an accused person’s right to access to Court entrenched in Section 34 of the Constitution.  It would also amount to piecemeal and prolonged litigation that could lead not only to the delay of justice but also to the wasteful use of limited judicial resources, which is against public policy.  It would also not seem to be in the interest of justice.[13]

 

[33] It follows from the foregoing that the impugned proviso can therefore not be limited to a conviction under Section 51(1) of Act 105 of 1997 and sentence to life imprisonment.  It affects or applies to the sentence of imprisonment for life as well as all the additional convictions and sentences for which such a person is liable.

 

[34]  I am therefore of the opinion that the automatic right to appeal a conviction and sentence to life imprisonment in terms of Section 309(1)(a) of the CPA, extends to all other convictions for which the appellants were convicted and sentenced to determinate sentences. 

 

ORDER:

 

[35] In the premise, the following order issues:

 

(a)            THE APPEAL IS UPHELD AND THE IMPUGNED CONVICTIONS AND SENTENCES ARE SET ASIDE.

 

(b)            THE DECISION TO INSTITUTE PROSECUTION DE NOVO IN TERMS OF SECTION 324 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977,[14] IS LEFT TO THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THIS DIVISION. 

 

 

APS NXUMALO J

HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION

KIMBERLEY

 

 

I concur.

 

 

CC WILLIAMS J

HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION

KIMBERLEY

For the 1st  and 2nd Appellants:         ADV LETSIE

Instructed by:                                  Akani Mathonsi Attorneys

 

For the 3rd Appellant:                       MR H STEYNBERG

Instructed by:                                  Legal Aid South Africa, Kimberley

 

For the Respondent:                        ADV J ROSENBERG


 

Instructed by:          Office of the State Attorney


[1]the CPA

[2] Act 105 of 1997

[3] Act 60 of 2000

[4] Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) para 23

[5] S v van der Westhuizen 2009 (2) SACR 350 (SCA) para 4

[6] Emphasis supplied

[7] See para 67

[8] Emphasis supplied

[9] S v Schoombee and Another 2017 (2) SACR 1 (CC) para 19

[10] Section 39 of the Constitution of the Republic of South Africa, 1996

[11] A593/2013

[12] S v Bangala (A412/2013) [2014] ZAGPJHC 86 (17 April 2014)

[13] Cloete and Another  v S and a Similar Application 2019 (4) SA 268 (CC) para 57

[14]the CPA