Richard Ditshele Molimi and Mokgobe Ishmael Mashoeshoe v The State

On 30 October 2000, a robbery occurred at Clicks store at Southgate Mall, Johannesburg. The first appellant was the store manager who initiated and planned the robbery with the second appellant, an ex-Fidelity Guards employee familiar with money collection routines. The second appellant recruited accused 1 and three others to execute the robbery. Four armed men entered the store, forced a security officer to empty money into a bag, and fled. During the escape, one robber and a Clicks security guard were killed in an exchange of gunfire. A bystander pursued accused 1, who took a hostage while seeking refuge in a store. When the bystander fired at accused 1, the bullet accidentally struck and killed the hostage. Another employee was also accidentally injured by the bystander's gunfire. Both appellants and accused 1 were charged with seven counts including robbery with aggravating circumstances, two counts of murder, attempted murder, unlawful possession of firearms and ammunition, and kidnapping. The State's case relied on extra-curial statements made by accused 1 and the second appellant to police, corroborated by cellphone records linking all three accused.

• Whether hearsay evidence in the form of extra-curial statements by co-accused was admissible against the appellants under section 3 of the Law of Evidence Amendment Act 45 of 1988
• Whether the trial court's failure to strictly comply with the procedural requirements laid down in S v Ndhlovu regarding admission of hearsay evidence rendered the trial unfair
• Whether the acts of accused 1 in taking a hostage and the subsequent death of the hostage were foreseeable by the other participants in the common purpose to commit robbery
• Whether the appellants could be convicted of unlawful possession of firearms and ammunition based on the common purpose doctrine when they never had physical possession of the firearms

1. The appeal by the appellants against their convictions on counts 1 (robbery with aggravating circumstances), 2 (murder of the security guard) and 4 (attempted murder of the employee) is dismissed. 2. The appeal by the appellants against their convictions on counts 3 (murder of the hostage), 5 (unlawful possession of firearms), 6 (unlawful possession of ammunition) and 7 (kidnapping) is upheld. Their convictions and sentences on these counts are set aside.

1. The admission of hearsay evidence under section 3 of the Law of Evidence Amendment Act 45 of 1988 must be determined by whether it is in the 'interests of justice', considering factors such as probative value, corroboration, timing, and whether the accused was able to deal with the evidence without prejudice. Strict compliance with procedural requirements, while important for fairness, does not automatically determine admissibility. 2. Under the common purpose doctrine, participants can only be held liable for acts by co-participants that were reasonably foreseeable as part of the execution of the common purpose. Acts that are 'unusual' and 'far removed' from the common purpose, constituting a 'frolic' by an individual participant, cannot be imputed to other participants. 3. For conviction of unlawful possession of firearms based on joint possession, the State must prove: (a) that the group had the intention to exercise possession through the actual possessor, and (b) that the actual possessor intended to hold the firearms on behalf of the group. Mere participation in an armed robbery does not automatically establish joint possession of the firearms used.

The court made several important observations: (1) The trial court's admission of evidence 'provisionally' was regrettable as it created uncertainty. Section 3(3) of the Act allows provisional admission only when a person will later testify; otherwise, when evidence is admitted in the 'interests of justice', a clear ruling is required. A vague provisional ruling 'conflates the admissibility of the evidence with its weight and may leave an accused unfairly in a state of uncertainty.' (2) The prosecutor and trial judge both failed in their duties - the prosecutor should have clearly requested admission of hearsay evidence under the Act, and the trial judge should have made a clear ruling on admissibility so the accused could appreciate the full evidentiary case against them. (3) The court criticized the prosecutor for misunderstanding the Ndhlovu judgment, incorrectly assuming it related to confessions under section 219 when it actually dealt with extra-curial statements generally. (4) The court noted that without the incriminating extra-curial statements, the cellphone records alone, while creating 'strong suspicion', would not have been sufficient to convict the first appellant.

This case is significant in South African law for several reasons: (1) It clarifies that the procedural requirements for admission of hearsay evidence under section 3 of the Law of Evidence Amendment Act 45 of 1988, as articulated in S v Ndhlovu, are not inflexible rules but guidelines to ensure fairness. The ultimate test is whether admission serves the 'interests of justice' and whether the accused was prejudiced. (2) It provides important guidance on the limits of the common purpose doctrine in criminal law, particularly regarding foreseeability. The judgment establishes that while participants need not foresee every detail of how an unlawful result is achieved, they also need not anticipate every conceivable unlawful act by co-participants. Acts that are 'unusual' and 'far removed' from the execution of the common purpose fall outside the scope of liability. (3) It confirms that S v Mbhuli overruled S v Khambule on the question of joint possession of firearms, requiring proof of specific intent by both the group and the actual possessor for a finding of joint possession. (4) The case demonstrates the distinction between consequences flowing from the execution of a common purpose (armed robbery with firearms) and independent frolics by individual participants (hostage-taking while fleeing alone).