Vuyani Maselani and Patrick Mgesi v The State

Three accused persons (two appellants and a third accused) were convicted of robbery with aggravating circumstances after robbing an elderly female victim who worked at a house. The accused arrived at the house ostensibly seeking work. After the victim opened the door, accused 3 stole her cell phone. When she threatened to call the police, all three accused decided to rob her. They subdued her by force and tied her up. While the two appellants went upstairs to search for items to steal, accused 3 remained to guard the victim. The victim died of asphyxia caused by manual strangulation. The medical evidence showed moderate force was applied to the victim's neck causing haemorrhage, though no fracture of the hyoid bones occurred. All three accused were acquitted of murder as the trial court found it had not been proven beyond reasonable doubt who killed the deceased, applying the cautionary rule regarding evidence of co-accused. The first appellant gave truthful evidence implicating accused 3 in the strangling. The two appellants were each sentenced to 15 years' imprisonment.

• Whether the injuries sustained by the victim constituted 'grievous bodily harm' within the meaning of section 1(b)(ii) of the Criminal Procedure Act 51 of 1977 for the purposes of establishing robbery with aggravating circumstances
• What factors are to be considered in determining whether grievous bodily harm has been inflicted
• Whether consequences to the victim (including death) are relevant in determining whether grievous bodily harm was inflicted
• Whether corroboration was required for the evidence of the first appellant implicating accused 3 in the murder
• Whether the prescribed minimum sentence of 15 years was proportionate and just in the circumstances

1. The appeal against conviction is dismissed. 2. The appeal against sentence is upheld and the sentence of 15 years' imprisonment imposed upon each appellant is set aside and replaced with ten years' imprisonment for each appellant, to run from the date of sentencing, being 29 July 2010.

The ratio decidendi is that: (1) In determining whether grievous bodily harm has been inflicted for purposes of establishing aggravating circumstances in robbery under section 1(b)(ii) of the Criminal Procedure Act 51 of 1977, the court is entitled to have regard to the whole complex of objective factors involved in the assault upon the victim, including the results which flowed from the infliction of the wounds. The consequences suffered by the victim, including death resulting from the infliction of bodily harm, are relevant considerations. (2) Where parties to a common purpose to rob are established and the infliction of grievous bodily harm upon the victim is proved, all parties are guilty of robbery with aggravating circumstances, regardless of which party actually inflicted the harm, and it is not necessary to prove that this consequence was foreseen by the parties. (3) Corroboration of evidence by an accomplice implicating a co-accused is not an absolute requirement where the accomplice is found to be a satisfactory and convincing witness while the accused is the opposite. What is required is proof beyond reasonable doubt based on an appraisal of all the evidence.

The court made obiter observations that the trial court had erred in acquitting accused 3 of murder, as the evidence of the first appellant (properly assessed without requiring corroboration) proved beyond reasonable doubt that accused 3 had murdered the deceased. The court also observed that it would be unjust if accused 3, who caused the death of the deceased, received a lesser sentence than the appellants who played no part in the infliction of the grievous bodily harm. The court noted that accused 3 had a motive to murder the deceased as he had told her he had worked at the premises before, which would have enabled police to trace him.

This case is significant for establishing the principle that in determining whether 'grievous bodily harm' has been inflicted for purposes of robbery with aggravating circumstances under section 1 of the Criminal Procedure Act 51 of 1977, courts must consider the consequences suffered by the victim, including death, and not merely the nature, position and extent of the wounds inflicted. The case clarifies that the whole complex of objective factors involved in an assault, including the results flowing from the assault, are relevant considerations. The case also provides guidance on when corroboration is not required for evidence of a co-accused implicating another accused, particularly where the testifying accused is found to be a satisfactory and convincing witness while the implicated accused is not. The judgment also demonstrates the application of the Malgas and Vilakazi principles on departing from prescribed minimum sentences where imposition of such sentences would be disproportionate and unjust.