THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 1361/2016

In the matter between:

TEBOGO PATRICK LEDWABA PHETOE
APPELLANT

and

THE STATE
RESPONDENT

Neutral citation:
Phetoe v State (1361/2016) [2018] ZASCA 20 (16 March 2018)

Coram:

Leach, Mocumie JJA and Plasket AJA

Heard:

16 February 2018

Delivered:

16 March 2018

Summary:

Criminal law and Procedure – conviction of rape as an
accomplice not correct – all elements of the crime including mens rea to be satisfied
- association or mere presence at the scene of the commission of the crime, not
necessarily proof of assistance or encouragement.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Local Division of the High Court, Johannesburg
(Mokgoatleng and Kumalo JJ and Dama AJ sitting as court of appeal):

(a) The appeal succeeds in respect of all counts except count 9.
(b) The order of the court a quo is set aside and replaced with the following order.
‘(i) The appellant’s conviction and sentence in respect of count 9 are confirmed.
(ii) The appellant’s convictions and sentences in respect of the remaining counts are
set aside.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Mocumie JA (Leach JA and Plasket AJA concurring):

[1] The appellant stood trial in the Gauteng High Court Division, Johannesburg
(the trial court), with six co-accused on eight counts of housebreaking with intent to
rob and robbery with aggravating circumstances, eight counts of common law rape
perpetrated on numerous complainants, one count of attempted robbery, three
counts of assault with intent to do grievous bodily harm, two counts of malicious
damage to property and two counts of assault. In January 2000, he was convicted on
all counts and sentenced to life imprisonment in respect of the rape convictions as
well as sentences ranging from two to 20 years’ imprisonment in respect of the other
convictions.

[2] In May 2000, the appellant’s application for leave to appeal against his
convictions and sentences was dismissed. In November 2012, this court granted the
appellant leave to appeal to a full court of the Gauteng Division, Johannesburg. In
June 2016, a majority of the full court upheld the appellant’s appeal against his
convictions on the eight counts of common law rape and substituted them with
convictions as an accomplice to those rapes. As the basis for these convictions had

changed, the majority of the full court set aside the eight sentences of life
imprisonment, reconsidered sentence and re-imposed eight sentences of life
imprisonment. The appellant’s appeal against the remainder of his convictions and
sentences were dismissed. In a minority judgment, Dama AJ would have set aside
all of the convictions and sentences but for count 9, it being a count of robbery with
aggravating circumstances for which the appellant had been sentenced to 15 years’
imprisonment.

[3] The appellant has now appealed to this court against his convictions and
sentences, with the exception of count 9. This appeal is with special leave of this
court.

Background Facts
[4] It is common cause that late on a Sunday night and early on a Monday
morning, in September 1998, a group of young men rampaged through the
Umthambeka Section of Tembisa, in the district of Kempton Park.  They forced entry
into several shacks and once inside, they assaulted, robbed and raped the
occupants. Ms Doris Mothobi (Ms Mothobi) and her two younger sisters, Ms
Ncumisa (Ms Ncumisa) and Ms Malesedi Ncumisa occupied one of the several
households invaded. Subsequently, seven people, including the appellant, were
arrested. He was well known to Ms Mothobi as the two of them attended high school
together. They were both in the same grade but in different classrooms. She knew
the appellant as Pat.

[5] In the trial court, Ms Mothobi testified that on the night in question, while she
and her sisters were sleeping, the appellant and a group of young men who were
unknown to her, forced entry into their shack. The intruders demanded money but
they were told that there was none. Ms Mothobi and her younger sister, Ms Ncumisa,
were ordered to cover their heads with blankets. A person, referred to in the trial as
‘the first intruder,’ demanded to have sexual intercourse with Ms Mothobi. She
refused. A second person, referred to as the ‘second intruder’, assisted the first
intruder to assault her and overcome her resistance. Her underwear was torn off.

The first intruder then raped her. When he had finished he went outside. Ms Mothobi
went to assist her younger sister, who was also being raped by another co-accused.

[6] At some stage, Ms Mothobi saw the appellant lying next to her on the bed.
She called him by his name and asked him ‘why are they doing such a thing’.
Instead of saying anything in response, the appellant laughed. At some stage, and it
is not clear from her evidence whether it was before or after she spoke to the
appellant, another co-accused entered the shack and raped her. Two months later,
an identification parade was held.  Ms Mothobi identified the appellant positively and
she did the same in the dock during the trial. Her identification of the appellant was
corroborated by Mr Tholamile Eric Mdaka, an occupant of one of the shacks that was
also invaded. He saw the appellant in the vicinity of his shack and Ms Mothobi’s
shack. Ms Mothobi was unable to identify any of the appellant’s associates on the
night of the incident. During cross examination, Ms Mothobi said that she could not
identify who had raped her or Ms Ncumisa. In answer to a question asked by the trial
judge, she said that she had not been raped by the appellant and she did not know
who had raped her sister.

The Trial Court
[7] In the trial court, Willis J, despite no evidence to this effect having been led,
found that the accused must have conspired together to commit the crimes that were
committed during the rampage. He also concluded on the basis of inferences that he
drew from circumstantial evidence that: first, the appellant was the second intruder
who assisted the first intruder to assault and subdue Ms Mothobi in order for her to
be raped; and secondly, he associated himself with the second rape of Ms Mothobi.
He was convicted on this basis of the rapes of both Ms Mothobi and Ms Ncumisa. In
addition, he was convicted on the basis of the finding as to a prior agreement of all
the offences that were committed during the rampage.

The Full Court
[8] On appeal to the full court, the majority (Mokgoatlheng and Khumalo JJ)
upheld the view of the trial court that Ms Mothobi was an excellent witness and it
justifiably accepted her evidence as reliable in identifying the appellant on the night
of the incident, immediately after she was raped by the first intruder. On that basis it

concluded that the appellant was the second intruder that assisted the first intruder in
assaulting and overpowering Ms Mothobi when she was first raped. The full court,
like the trial court, concluded that the appellant associated himself with the second
rape of Ms Mothobi. It however held him liable as an accomplice in respect of each
of the eight common law rapes perpetrated on the eight complainants during the
course of the rampage. It dismissed his appeal against the remainder of his
convictions and sentences.

[9] In his minority judgement, Dama AJ disagreed with the majority’s conclusion
and held in respect of the rape of Ms Mothobi and her sister that:
‘[In this case] there is no minute evidence which was proved by the State that the appellant
assisted others in any form during the commission of the rape, save that he was present at
the scene and, therefore appellant must escape liability in this regard.’
He found that there was no evidence to link the appellant to the offences committed
at places other than Ms Mothobi’s shack. He concluded that the evidence
established the appellant’s guilt in respect of count 9 only – the robbery with
aggravating circumstances committed in Ms Mothobi’s shack. He would have upheld
the appeal in respect of all the convictions on all counts, other than count 9.

In this Court
[10] Before us, counsel for the appellant contended that Ms Mothobi’ s evidence
as to when she saw the appellant in her shack was unclear. He submitted that during
her testimony, Ms Mothobi replied ‘I do not remember any more as to whether it was
before or after I had been raped’. He further submitted that the objective facts
showed that there were more than three intruders, whereas Ms Ncumisa testified
that there were five young men and Ms Mothobi could not remember. Ms Mothobi
was also adamant that she and her younger sister were not raped by the same
intruder. For that reason, counsel for the appellant contended that the full court
misdirected itself for convicting the appellant as an accomplice to the rape of Ms
Mothobi and her younger sister. He also argued that the appellant’s convictions in
respect of all of the other counts, except for count 9, had not been proved beyond a
reasonable doubt by the State.

The law and the facts: accomplice to rape
[12] In Minister of Justice and Constitutional Development & another v Masingili &
others1 the Constitutional Court grappled with the meaning of the term ‘accomplice’.
Having considered the facts before it, it stated the following:
‘An accomplice is someone whose actions do not satisfy all the requirements for criminal
liability in the definition of an offence, but who nonetheless furthers the commission of a
crime by someone else who does comply with all the requirements (the perpetrator).The
intent required for accomplice liability is to further the specific crime committed by the
perpetrator.’

[13] The learned author C R Snyman Criminal Law 6 ed (2014) at 266 describes
the position as follows:
‘Accomplice liability may be defined as follows:
1. A person is guilty of a crime as an accomplice if, although he does not satisfy all the
requirements for liability contained in the definition of the crime and although the conduct
required for a conviction is not imputed to him by virtue of the principles relating to common
purpose, he unlawfully and intentionally engages in conduct whereby he furthers the
commission of a crime by somebody else.
2. The word “furthers” in rule 1 above includes any conduct whereby a person facilitates,
assists or encourages the commission of a crime, gives advice concerning its commission,
orders its commission or makes it possible for another to commit it.’

[14] Against this background, it is necessary to examine Ms Mothobi’s evidence. In
my view, the clear identification of the appellant by Ms Mothobi could not be refuted
as she knew him well prior to the incident. She also had sufficient opportunity within
the confines of a single-room shack to positively identify him as he came into the
shack with his co-accused and when he was lying on the bed after the first rape had
occurred.

1 Minister of Justice and Constitutional Development & another v Masingili & others [2013] ZACC 41;
2014 (1) SACR 437 (CC) para 21; See also R v Jackelson 1920 AD 486 at 491. For interest, in the
United Kingdom, the doctrine is more commonly known as ‘joint criminal enterprise’. In Jogee and
Ruddock v The Queen (Jamaica) [2016] UKSC the Supreme Court stated:
‘(1) D2 must assist or encourage D1 in the commission of offence X;
(2) D2 must know any necessary facts which gives D1’s conduct or intended conduct its criminal
character; and
(3) With that knowledge,D2 must intend to assist or encourage D1 to commit offence X, with the
requisite mental fault element of that offence.’

[15] Reverting to the basis on which the full court confirmed the convictions, and
applying same to these facts, I have to agree with Dama AJ on his reasons
mentioned above in para [9]. To convict the appellant on the basis of his mere
presence is to subvert the principles of participation and liability as an accomplice in
our criminal law. For criminal liability as an accomplice to be established, there must
have been some form of conduct on the part of the appellant that facilitated or
assisted or encouraged the commission of the rape of Ms Mothobi during the two
separate incidents in her shack.  Ms Mothobi’s evidence does not disclose any
assistance rendered by the appellants in the commission of the rapes; and the
conduct does not amount to facilitation, assistance or encouragement. That, in my
view, should have been the end of the matter. The fact that the appellant laughed
after being asked why they were ‘doing such a thing’ may be conduct that showed
his approval of what was happening, but that is not enough to establish his liability as
an accomplice. In S v Nooroordien & andere,2 in which two persons had been
present when a murder had been committed, the court stated:
‘Alles wat gebeur het mag, en het in alle waarskynlikheid hulle goedkeuring weggedra. Dit is
egter nie genoeg nie…’3

[16] Before us, the State relied on S v Kock4 but also conceded that the facts of
that case are distinguishable from the present appeal. In Kock the appellant was
charged with rape together with his co-accused. During the rape of the complainant
by the appellant’s co-accused, the appellant stood guard with a panga while accused
1 was raping the complainant.  In the appeal before us, the least that can be said
about the appellant’s conduct of laughing and doing nothing to prevent the rapes, is
that it was morally reprehensible. That, and his mere presence at the scene, is not
enough to justify a conviction as an accomplice to rape.

[17] As no actus reus has been established by the evidence, the appellant’s
convictions as an accomplice in respect of the rape of Ms Mothobi cannot succeed.
For the reasons set out immediately below, the appellant’s conviction as an
accomplice to the rape of Ms Ncumisa must also be set aside.

2 S v Nooroodien & andere 1998 (2) SACR 510 (NC); See Snyman above.
3 At 524f-g. Loosely translated to English it means ‘all that happened seems to have carried their
approval. That is however not enough.’
4 S v Kock en ‘n ander 1998 (1) SA 37 (A)

Common purpose on the remaining offences where the appellant was not
present.

[18] In respect of the remaining charges of being an accomplice to rape, including
the rape of Ms Ncumisa, housebreaking, with intent to rob and robbery with
aggravating circumstances, common assault and assault with intent to do grievous
bodily harm, housebreaking with intent to rob and attempted robbery with
aggravating circumstances and  malicious injury to property, which were committed
at other households, the trial court found that a prior agreement must have been
reached by all those identified at any of the sites at which crimes had been
committed. It was on this basis that the appellant was convicted even though he was
only identified at Ms Mothibi’s shack. It reached this conclusion by inferential
reasoning: because so many offences were committed by so many people at so
many places, those who were identified must have agreed beforehand to the
rampage and everything that it entailed. This is not, however, the only reasonable
inference to be drawn and certainly in respect of the appellant, it cannot be said that
because he was seen at Ms Mothobi’s shack he was party to a prior agreement and
was present at all of the other scenes.

[19] In the absence of any prior agreement, the State had to prove the following
requirements of the doctrine of common purpose as set out in S v Mgedezi5 in order
for the appellant to be held criminally accountable. Firstly, the appellant was present
at the scene of violence. Secondly, he was aware of the perpetration of such
offences on the complainants in the other households. Thirdly, he had intended to
make common cause with those who were actually perpetrating the offences.
Fourthly, he manifested his sharing of a common purpose with the perpetrators of
the offences by himself performing some act of association with the conduct of the
others. Fifthly, he had the requisite mens rea i.e he intended to assault, break in and
rob or must have foreseen the possibility of the commission of these offences and
performed his own act of association with reckless disregard as to whether or not
such eventuality ensued.

5 S v Mgedezi & others [1988] ZASCA 135; 1988 (1) SA 687 (A) at 7051I-706C.

[20] In my view, there was no such evidence to prove that the appellant was
present at the scenes of violence where the rapes, assaults, housebreakings,
robberies and other offences were being committed other than at the household of
Ms Mothobi and Ms Ncumisa . Nor was it proven that he had the requisite mens rea,
was aware of the violence taking place in the other households and had manifested
his sharing of a common purpose with the perpetrators of the rapes, assaults,
housebreakings, robberies and other offences.  The Constitutional Court in S v
Molimi 6put it aptly as follows:
‘It is a cardinal principle of our criminal law that when the State tries a person for allegedly
committing an offence, it is required, where the incidence of proof is not altered by statute ..,
to prove the guilt of the accused beyond reasonable doubt. That standard of proof,
“universally required in civilised systems of criminal justice,” is a core component of the
fundamental fair trial right that every person enjoys under s 35(3) of the Constitution.  In S
v Zuma and Others, this Court, per Kentridge AJ, held that it is always for the prosecution to
prove the guilt of the accused person, and that the proof must be beyond reasonable doubt.
The standard, borrowing the words used by Plasket J in S v T, “is not part of a charter for
criminals and neither is it a mere technicality.” When the State fails to discharge the onus at
the end of the case against the accused, the latter is entitled to an acquittal. ‘
Thus the appellant ought not to have been convicted of all the other charges except
the charge in respect of count 9.The concession in respect of count 9 was made
correctly so. In my view, therefore, the trial court and the full court erred in convicting
the appellant of any of the charges with the exception of count 9.

[21] The events of that night were aptly described by the full court as a ‘reign of
terror, an orgy of violence and pillage which included a paralysis of fear, morbidity,
hopelessness and a psychosis of defencelessness’ in the complainants.’ This court
is sensitive and aware of these violent crimes perpetrated against women and
children. But there is a more onerous duty on courts to ensure that there is an
adherence to the rule of law to the extent envisaged by our Constitution where
everyone is treated equally before the law. To use the words of Plasket J in S v T:7
‘The State is required, when it tries a person for allegedly committing an offence, to prove
the guilt of the accused beyond reasonable doubt. This high standard of proof – universally

6 S v Molimi [2008] ZACC 2; 2008 (2) SACR (CC) para 50.
7 S v T 2005 (2) SACR 318 (E) at para 37.

required in civilised systems of criminal justice – is a core component of the fundamental
right that every person enjoys under the Constitution, and under the common law prior to
1994, to a fair trial. It is not a part of a charter for criminals and neither is it a mere
technicality. When a court finds that the guilt of an accused has not been proved beyond
reasonable doubt, that accused is entitled to an acquittal even if there may suspicions that
he or she was, indeed, the perpetrator of the crime in question. That is an inevitable
consequence of living in a society in which freedom and the dignity of the individual are
properly protected and are respected. The inverse – convictions based on suspicion or
speculation – is the hallmark of tyrannical systems of law. South Africans have bitter
experience of such a system and where it leads to’.

[20] In the result the following order is granted:
(a) The appeal succeeds in respect of all counts except count 9.
(b) The order of the court a quo is set aside and replaced with the following order.
‘(i) The appellant’s conviction and sentence in respect of count 9 are confirmed.
(ii) The appellant’s convictions and sentences in respect of the remaining counts are
set aside.

_________________
BC Mocumie
Judge of Appeal

APPEARANCES:

For Appellant:

EA Guarneri
Instructed by:

Justice Centre, Johannesburg

Justice Centre, Bloemfontein

For Respondent:

KT Ngubane
Instructed by:

The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

16 March 2018

STATUS

Immediate

Phetoe v State (1361/2016) [2018] ZASCA 20 (16 March 2018)

Please note that the media summary is intended for the benefit of the media and does not form part of the
judgment of the Supreme Court of Appeal.

The SCA today upheld an appeal and set aside and substituted the decision of the Gauteng Local
Division of the High Court, Johannesburg.

The appellant stood trial with six co-accused on eight counts of housebreaking with intent to rob and
robbery with aggravating circumstances, eight counts of common law rape, perpetrated on numerous
complainants, one count of attempted robbery, three counts of assault with intent to do grievous bodily
harm, two counts of malicious damages to property and two counts of assault.  The appellant was
convicted in January 2000 on all counts and sentenced to life imprisonment in respect of the rape
convictions as well as sentences ranging from two to 20 years’ imprisonment in respect of the other
convictions.

In June 2016 the full court upheld the appellant’s appeal against convictions on the eight counts of
common law rape and substituted them with convictions as an accomplice to those rapes and re-imposed
eight sentences of life imprisonment.  The appellant appealed to this court against his convictions and
sentences with the exception of count 9.

The SCA held on appeal that there was no evidence to prove that the appellant was present at the
scenes of violence where the rapes, assaults, housebreakings, robberies and other offences were being
committed other than at the household of Ms Mothobi and Ms Ncumisa.  The State failed to prove the
requirements of the doctrine of common purpose for the appellant to be held criminally accountable.

In the event, the SCA confirmed the appellant’s conviction and sentence in respect of count 9 and found
the convictions and sentences in respect of the remaining counts to be set aside.