Nongogo v The State

The appellant, Noxolo Victoria Nongogo, was charged together with Temba Tsekemane for the murder of her husband before Griffiths J in the Eastern Cape High Court. Both initially pleaded not guilty. After 12 state witnesses had been led, Mr Tsekemane changed his plea to guilty, which the State accepted. Griffiths J granted a separation of trials in terms of s 157(2) of the Criminal Procedure Act, ordering the appellant's trial to commence de novo before another judge. Mr Tsekemane was convicted of murder (but acquitted of conspiracy to murder) and sentenced to 20 years' imprisonment. The appellant's trial then commenced before Mjali J, where Mr Tsekemane testified as a state witness. The appellant was convicted of both murder and conspiracy to commit murder and sentenced to life imprisonment. A special entry was made during the trial raising concerns about procedural irregularities.

• Whether the trial court erred in convicting the appellant of both murder and conspiracy to commit murder (duplication of convictions)
• Whether it was permissible to order a separation of trials at such a late stage of proceedings
• Whether it was irregular to order that the appellant's trial commence de novo before another judge without nullifying the initial trial
• Whether a co-accused who pleaded guilty could be called as a state witness against the appellant
• Whether the appellant's fair trial rights were violated by unreasonable delay
• Whether the appellant had been tried twice for the same offence

The appeal succeeded partially. The conviction and sentence on conspiracy to commit murder were set aside due to duplication of convictions. The appeal was otherwise dismissed. The conviction and sentence of life imprisonment on the count of murder were confirmed.

The binding legal principles established are: (1) Where a person conspires with another to commit a crime and the crime is actually committed, the conspirator is liable for the crime itself and should not be convicted of both conspiracy and the completed offence - this amounts to impermissible duplication of convictions. (2) Under s 157(2) of the Criminal Procedure Act, it is permissible and indeed prudent to order a separation of trials when one co-accused changes their plea to guilty, particularly where failure to separate would cause prejudice (such as conflict of interest where co-accused share legal representation). (3) An accused person who has pleaded guilty and been convicted is a competent witness against remaining co-accused in their separate trials. (4) When trials are separated under s 157(2), the court may abstain from giving judgment and order a de novo trial, which does not constitute trying the accused twice for the same offence. (5) The test for determining whether to grant separation of trials is whether there will be prejudice to the accused.

The court noted that there is some doubt about whether it makes a difference if a co-accused who has pleaded guilty is sentenced before being called as a state witness, but stated that this issue did not arise in the present case as Mr Tsekemane had already been sentenced before testifying. The court also observed that the special entry should not have been entered into the record as the issues raised had no merit and there was no irregularity that vitiated the proceedings. The court expressed the view that the court a quo's concerns regarding double jeopardy were unwarranted given the specific provisions of s 157(2) allowing the court to abstain from judgment.

This case clarifies important principles regarding duplication of convictions in South African criminal law, confirming that a person cannot be convicted of both conspiracy to commit a crime and the completed crime itself. It also reinforces established procedural principles regarding separation of trials under s 157(2) of the Criminal Procedure Act, particularly: (1) the propriety of separating trials when a co-accused changes their plea to guilty; (2) the competence of a convicted co-accused to testify as a state witness; and (3) the proper application of special entry provisions under s 317 of the Criminal Procedure Act. The judgment provides guidance on when procedural decisions amount to irregularities, emphasizing that prejudice to the accused is the overarching consideration.