The two appellants were charged in the Limpopo Local Division, Thohoyandou, with murder, two counts of attempted murder, and two counts of robbery with aggravating circumstances arising from armed robberies and shootings at two taverns on 22 and 23 February 2007. The State alleged that they acted in furtherance of a common purpose. During the second incident, the second appellant shot and killed Rudzani Mphephu and also shot Oscar Tshikomo. The first appellant made a confession implicating himself and the second appellant, which was admitted after a trial-within-a-trial. Both appellants raised alibi defences but were convicted on most counts and received lengthy effective sentences. The High Court granted leave to appeal on some convictions and all sentences, but refused leave on others, prompting an application to the SCA.
Leave to appeal was granted on all remaining convictions. The first appellant’s convictions on counts 1 (murder) and 3 (attempted murder) were set aside; his convictions on counts 2, 4 and 5 were confirmed, but the sentence on count 5 was replaced with 15 years’ imprisonment with partial concurrency. The second appellant’s convictions on counts 3 and 5 were set aside; his convictions on counts 1, 2 and 4 were confirmed, but his sentences were replaced with 20, 10 and 15 years’ imprisonment respectively, with concurrency. All sentences were antedated to 17 March 2009.
The case is significant for clarifying the limits of the doctrine of common purpose, particularly where a co-perpetrator commits a murder that falls outside the scope of the shared criminal design. It also reaffirms constitutional requirements for the admissibility of confessions and highlights the irregularity of convicting an accused on a charge not contained in the indictment. The judgment further illustrates appellate intervention in sentencing where misdirection results in disproportionate punishment.