Mmotla and Others v S (A99/2018) [2024] ZAGPPHC 362 (10 April 2024)

This case involves an appeal by four appellants, Seema Mosa Mmotla, Michael Mathe, Zakhele Masuku, and Mzane Wayne Maranele, against their convictions on multiple charges, including attempted murder, murder, conspiracy to commit robbery, robbery with aggravating circumstances, unlawful possession of firearms and ammunition, theft of a motor vehicle, and attempted robbery. The charges stem from an incident on February 22, 2011, where the appellants, along with three deceased co-conspirators, allegedly planned to rob a cash-in-transit van. The first appellant, a police officer, proposed the plan to the driver of the van, Mr. Jan Sithole, and his assistant, Mr. William Makela, who then disclosed it to their employer and the police. The police set up a trap to apprehend the robbers, which resulted in a shootout. The three deceased robbers were killed, and the appellants were arrested and charged.

The prosecution's case had several missteps, including a poorly drafted charge sheet, lack of evidence to support certain charges, and failure to allege the reliance on the doctrine of common purpose. The court found that the evidence regarding the trap was admissible and that the actions of the informants did not go beyond providing an opportunity to commit the offense. However, the court also found that the appellants could not be charged with robbery as no money was stolen, and there was no evidence to support a charge of theft of a motor vehicle.

The court then evaluated the evidence against each appellant. The first appellant was found to have initiated the plan and coordinated the robbery, and was thus guilty of conspiracy to commit aggravated robbery and attempted aggravated robbery. The second appellant's conviction was overturned due to a lack of credible evidence directly implicating him in the offense. The third and fourth appellants were found to be actively associated with the offense and were convicted of attempted robbery. The court also addressed the issue of duplication of convictions, overturning the conviction on conspiracy to commit aggravated robbery for the first, third, and fourth appellants.

The court imposed a sentence of 15 years' imprisonment for the first, third, and fourth appellants on the charge of attempted robbery, taking into account the aggravating and mitigating circumstances, the seriousness of the offense, and the interests of the community. The court also considered the lives lost and the attempt to kill others during the incident.

The core legal principle underlying the decision in this case is the evaluation of the doctrine of common purpose and its application, or lack thereof, in determining the guilt or innocence of the appellants. The court found that the prosecution failed to allege the reliance on the doctrine of common purpose in the charge sheet, which is essential for holding individuals liable for the actions of their co-conspirators. As a result, the court had to consider the acts of each appellant individually to determine their guilt or innocence.

The court also addressed the admissibility of evidence obtained through a trap set up by the police under section 252 A of the Criminal Procedure Act. The court concluded that the actions of the informants did not go beyond providing an opportunity to commit the offense and thus, the evidence relating to the trap was admissible.

Additionally, the court evaluated the charges against each appellant, finding that some charges, such as robbery and theft of a motor vehicle, were unfounded due to a lack of supporting evidence. The court then assessed the evidence against each appellant in relation to the remaining charges, considering their individual actions and involvement in the offense.

Here is a summary of the case law referenced in the provided judgment:

- S v Safatsa 1988 (1) SA 868 (A): This case affirmed the doctrine of common purpose, holding that individuals who actively associate themselves with a common purpose can be held liable for the acts of all involved, even if their specific actions cannot be causally connected to the outcome.

- Msimango v The State 2018 (1) SACR 276 (SCA): The court emphasized the importance of informing the accused of the charges and the basis for those charges, including the reliance on the doctrine of common purpose, to ensure a fair trial as per Section 35(3)(a) of the Constitution.

- S v Matsabu 2009 (1) SACR 513 (SCA): This case clarified the interpretation of Section 252A of the Criminal Procedure Act, stating that while traps are permissible to provide an opportunity for an offense, encouraging or enticing the commission of a crime is impermissible.

- S v Wana ECP CC 16/2013: This case supported the use of a trap under Section 252A when the conspiracy and terms were agreed upon beforehand, and the subsequent actions were part of the planning of the robbery.

- S v Nooroodien 1998 (2) SACR 510 (NC): The court held that an accused who is part of a conspiracy to commit a crime and the conspiracy is carried out can be convicted as a co-perpetrator without relying on the common purpose doctrine.

- Gqirana v The State Eastern Cape Bisho Case No. CA&R/2008: This case supported the conviction of an accused as a co-perpetrator based on their involvement in a conspiracy, similar to the ruling in S v Nooroodien.

- S v Sauls and Others 1981 (3) SA 172 (A): This case further emphasized the principle that an accused who is part of a conspiracy to commit a crime can be convicted as a co-perpetrator.

- S v Francis 1991 (1) SACR 198 (A): This case established the principle that a court of appeal should not lightly interfere with credibility findings of the trial court as they are in the best position to evaluate the evidence and witness veracity.

- S v Monyane and Others 2008 (1) SACR 543 (SCA): This case reaffirmed the principle that a court of appeal should generally defer to the trial court's credibility findings.

- S v Van der Meyden 1999 (1) SACR 447 (W): The court emphasized the importance of considering both the incriminating and exculpatory evidence when evaluating the guilt of an accused, as the two are inseparable in determining whether there is proof beyond a reasonable doubt.