THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case no: 46/2013

In the matter between:
MMABANGISENI VICTOR MAKUMBANE            First Appellant
MURAVHA WILLEM MUNYAI

Second Appellant
TAKALANI NEKHWEVHA

Third Appellant
and
THE STATE

Respondent
Neutral citation: Makumbane v The State (46/2013)[2014] ZASCA 116
(18 September 2014)
Coram:
NAVSA ADP, WALLIS AND WILLIS JJA.
Heard:
10 September 2014
Delivered: 18 September 2014
Summary: Criminal procedure – special entry in terms of s 317 of
Criminal Procedure Act 51 of 1977 – can only be made by trial court –
application to lead evidence on appeal – in circumstances could not be
used to overcome failure to testify at the trial – fair trial – complaint of
inadequate representation – sentence.

ORDER

On appeal from: Limpopo High Court, Thohoyandou (Makhafola J
sitting as court of first instance):
1 The applications for leave to appeal against conviction are
dismissed.
2 Leave to appeal against the sentences imposed on the applicants is
granted.
3 The appeals against sentence are upheld.
4 The sentence on count 1 (murder) is set aside and replaced by a
sentence of 20 years’ imprisonment in respect of all three
appellants.
5 The sentence on count 2 (assault with intent to commit grievous
bodily harm) of three years’ imprisonment is confirmed in
respect of all three appellants.
6 The sentence of three years’ imprisonment imposed on the second
and third appellants in respect of count 3 (kidnapping) is
confirmed and it is ordered that this sentence is to run
concurrently with the sentence imposed in respect of count 2.

JUDGMENT

Wallis JA (Navsa and Willis JJA concurring)
[1] This is an application for leave to appeal against conviction and
sentence, joined with applications for the making of a special entry and
leave to lead further evidence on appeal. The events leading to it were
briefly the following. On the evening of 10 October 2008, two young

men, Tshilate Tshilidzi and Tshifaro Funanani were taken to a grinding
mill near Tshishaulu in Limpopo and beaten. Mr Tshilidzi died as a
result and Mr Funanani was severely injured. The applicants were among
seven local residents, all men of mature years and having some stature in
the community, who were charged with the murder of Mr Tshilidzi and
the attempted murder of Mr Funanani. All three applicants were also
charged with kidnapping Mr Funanani and the first and third applicants
with the kidnapping of Mr Tshilidzi.

[2] After a trial, at which Mr Funanani was the principal witness for
the prosecution, six of the seven accused, including the three applicants,
were convicted by Makhafola J of the murder of Mr Tshilidzi; all of the
accused were convicted of assault with intent to do grievous bodily harm
in relation to Mr Funanani and the second and third applicants were
convicted of kidnapping Mr Funanani. On the murder count all of the
accused that were convicted, were sentenced to life imprisonment and on
the other counts terms of imprisonment were imposed to run
concurrently with the sentence of life imprisonment. Leave to appeal
against both conviction and sentence was refused. An application to this
court for leave to appeal, including applications for leave to lead further
evidence on appeal and an application for the making of a special entry,
was referred for oral argument by this Court in terms of s 21(3)(c)(ii) of
the Supreme Court Act 59 of 1959. The parties were required to be
prepared, if called upon to do so, to address the merits of the appeal.

[3]    I deal first with the facts. The evidence of Mr Funanani
concerning the events of that evening was not seriously challenged. The
first and second applicants made formal admissions that they had beaten
him with a sjambok although only a few strokes, as did some of the other

accused. The third applicant made a similar admission in relation to Mr
Tshilidzi as did the remainder of the accused. The effect of those
admissions was to place all three of them at the scene where the beatings
took place and to admit their participation in at least some kind of
collective assault on the two young men to which all seven accused and
possibly others were party. Although the admissions were made in
relation to the use of a sjambok, the evidence of Mr Funanani that they
were in fact beaten with a length of fairly robust cable was accepted by
the judge in the light of the opinions expressed by Drs Mutshembele and
Onwugbolu, that the injuries sustained by Mr Funanani and the deceased
were more consistent with their having been beaten with a cable, rather
than a sjambok. There is no basis for rejecting that conclusion.

[4] In cross-examination of Mr Funanani the applicants disputed his
further evidence that he and the deceased were suspended by their ankles
from some beams and beaten severely while suspended. They did not
give evidence to contradict him but relied on the absence in the medical
report on Mr Funanani and the post-mortem report in respect of Mr
Tshilidzi of any injuries consistent with that having occurred. However,
even if one disregards this part of Mr Funanani’s evidence as an attempt
to exaggerate the severity of the beatings the two men received, it does
not affect the fact that all seven accused, together possibly with others,
participated in a collective assault on these two young men, which left
the one dead and the other with extensive bruises and lacerations.

[5] It was suggested in argument that the evidence was insufficient to
show that the applicants were participants in that part of the assault on
Mr Tshilidzi that resulted in the head injuries that caused his death.
However, it is clear that the assault was a concerted one and there is no

basis for postulating an interruption in it where the applicants withdrew
from the proceedings and others inflicted the fatal blow or blows. Had
there been evidence to that effect from any of the applicants that might
have been a different matter but in the absence of such evidence and the
lack of any serious inroads in cross-examination into the credibility of
Mr Funanani, the inevitable conclusion, on the evidence before the trial
court, was that all of the applicants participated in the two assaults and
that one of them led to the death of Mr Tshilidzi. On that evidence the
convictions for murder and assault with intent to commit grievous bodily
harm were proper. Similarly, the convictions of the second and third
applicants on the kidnapping count could not be challenged.

[6] Faced with that the applicants sought to introduce fresh evidence at
the appeal and also asked this court to make a special entry arising from
the manner in which the advocate who represented all seven accused
throughout the trial conducted their defence. However it is clear that only
the trial court can make a special entry as s 317(2) of the Criminal
Procedure Act 51 of 1977 says that an application for a special entry
shall be made to the judge who presided at the trial, subject to that
judge’s availability. That is entirely logical as a special entry may often,
as would the one here suggested, require evidence of the irregularity that
does not appear from the record of the trial. The application for a special
entry was accordingly dismissed in the course of the hearing.

[7]  The application to lead further evidence on appeal suffered the
same fate. Again the reasons are straightforward. The purpose of the
application was nothing more than to enable the applicants to reopen the
case in order to give the evidence that they elected not to give at the trial,
the nature of which broadly emerges from the record of the evidence led

in mitigation of sentence. The record shows that they made a conscious
decision when legally represented not to give evidence. An application
on appeal to lead evidence that was available and that they elected not to
give at the trial is plainly impermissible. Hence the dismissal of the
application.

[8] As the argument developed it became apparent that the applicants’
real complaint was that they had not had a fair trial. The basis for this
contention was that all the accused had been represented by the same
advocate throughout the trial. The advocate had advised them to make
certain admissions in the conduct of their defence those being the
admissions referred to in para 3 of this judgment. Then when it came to
the defence case they say that they were advised that the best course to
follow was for accused number two to give evidence and for the
remaining accused, including all three applicants, not to enter the witness
box. Their further complaint is that the evidence of accused number two
was exculpatory of him, but reinforced their presence at the scene and
participation in the assaults on Mr Funanani and Mr Tshilidzi.

[9] The difficulty with this argument is that it is simply not borne out
by the record of events both before the trial commenced and while it ran
its course. Counsel, a Mr Mushasha, was retained to represent all seven
accused. The question of any possible conflict was specifically raised
with him and the accused at a hearing before the commencement of the
trial when the matter was adjourned. The assurance was then given that
there was no conflict among the accused. At that stage counsel had
consulted with his clients and having been asked for an assurance gave it.
When the trial commenced before Makhafola J the first witness was Mr
Funanani. He gave his evidence and was cross-examined by Mr

Mushasha. It was during the cross-examination that all of the accused,
including accused number two, tendered certain admissions about their
involvement in the events on 10 October 2008. In addition, at various
stages in the course of the cross-examination, questions were put to the
witness prefaced by ‘my instructions are’. In the course of his cross-
examination the court required him when putting matters to the witness
to identify which of the accused would say what was being put and he
did so. Had that been incorrect one would have expected it to be drawn
to counsel’s attention. Whilst the accused were not all highly
sophisticated men they were not without experience and acumen. The
first applicant was a general officer employed by the tribal council; the
second applicant was a police officer of thirty years standing; and the
third applicant was a self-employed motor mechanic. What was put to
Mr Funanani was consistent with the admissions handed in and also
consistent with what the first and third applicants said when giving
evidence in mitigation of sentence.

[10]    Importantly, at the end of the cross-examination of Mr Funanani,
counsel sought the leave of the court to approach his clients and ensure
that he had covered all the matters on which they wished him to cross-
examine. It was only after he had taken these instructions that he
completed the cross-examination. At that stage, and before re-
examination Mr Mushasha indicated that he would have to withdraw
because of a lack of funds to pay his fees. The accused were so intent on
his continuing to represent them that they asked for and secured a brief
adjournment in order to raise the necessary funds. In the result Mr
Mushasha continued to represent them for the rest of the trial. It is plain
from this that the complaints now made that he procured that they make
admissions harmful to their interests are ill-founded. I turn then to

consider the complaint about their closing their cases without leading
evidence and relying solely on the evidence of accused number two.

[11] The first applicant closed his case without giving evidence. This
was before accused number two commenced giving evidence. In view of
the similarity of the admissions made by all the accused it appears plain
that there was a deliberate decision in conjunction with counsel to call
accused number two, who was the best educated and presumably the
most articulate of the accused, to describe the events of that evening. The
fact that he said that he left the place where the beatings occurred at an
early stage, before Mr Tshilidzi was brought to the mill, did not serve to
implicate the remaining accused, and particularly the applicants, any
further in the events beyond the scope of their existing admissions. The
applicants heard the evidence of accused number two and had they
wished to add anything to it or qualify it in any way they were free to do
so. Equally there was nothing in his evidence that prevented any of them
giving similarly exculpatory explanations of their conduct, but had they
done so they would have been exposed to cross-examination about
inconsistencies between their evidence and that of accused number two.
Once the latter’s evidence was complete it was open to any of the five
remaining accused to give evidence, if they wished to do so, and it is
probable that the court would even have been willing to allow the first
applicant to do so if he had sought leave to reopen his case. It would
hardly have mattered to the course of the trial had he given evidence
after accused number two. Most importantly, if there was indeed any
conflict of interest, as contended in the application for leave to appeal, it
would undoubtedly have emerged once the second accused finished
giving evidence. That it did not do so clearly indicates that no such
conflict manifested itself or existed.

[12] In the result there is no merit in the applicants’ complaint that they
did not receive a fair trial. The application for leave to appeal against
their convictions must therefore be refused. But there remains an
application for leave to appeal against the sentences imposed upon them.
In regard to the sentences on the counts of assault with intent to commit
grievous bodily harm and kidnapping it is not suggested that these were
in any way untoward. The attack focussed on the sentences of life
imprisonment for the murder of Mr Tshilidzi. That sentence had been
imposed in terms of s 51(1) of the Criminal Law Amendment Act 105 of
1997 read with Part I of Schedule 2 to that Act, because the death of Mr
Tshilidzi was occasioned by persons acting in the furtherance of a
common purpose.

[13] The trial court held that there were no substantial and compelling
circumstances justifying the imposition of a lesser sentence. In my view
it misdirected itself in at least two respects in reaching that conclusion.
First it categorised the killing of Mr Tshilidzi as ‘gruesome, dastardly,
insensitive, rampant, heinous, vicious and careless in the most extreme’ a
combination of adjectives that was not only internally inconsistent but
over-stated the position. That much is clear from the concession by
counsel for the State that the accused did not have any direct intention to
kill the deceased. It is clear that this was a case of local vigilantism,
where a community beset by a particular type of crime – the theft of
electrical cables – and consequent inconvenience to their daily lives set
out to solve the crime by kidnapping and beating the suspected
perpetrators in order to elicit confessions and deter them from repeating
their offence. They did not set out to kill their victims, but they killed Mr
Tshilidzi because they did not appreciate the seriousness of some of the

blows they struck, which caused his head injuries. Their lack of
appreciation of the possible consequences of their conduct was probably
fuelled by the liquor they were consuming at the time.

[14] The other factor that seemed to weigh heavily in the judge’s
consideration of the question whether there were substantial and
compelling circumstances justifying the imposition of a lesser sentence
was some evidence that Mr Funanani’s mother was being ostracised by a
section of the community who supported the actions of the accused and
were hostile to their prosecution. However, that could not be laid at the
door of the applicants and was a matter extraneous to the judge’s
function. It should not have been taken into account.

[15] For those reasons I think that the judge erred in regard to sentence
and that we are at large to reconsider the issue. In my view this was a
serious case involving as it did the perpetrators taking the law into their
own hands. That must always be discouraged however much
communities may be frustrated by a high incidence of crime and any
apparent inability of the police to prevent crime in general and solve
crimes once perpetrated. So does the fact that they did not set out to kill
either Mr Funanani or Mr Tshilidzi. Lastly, as I have already mentioned
the three applicants had hitherto led useful lives making a contribution to
the community in which they lived. There is every reason to think that
the imposition of a substantial term of imprisonment will bring home to
them what they have done wrong and that, having served that term of
imprisonment, they will be rehabilitated and able to resume useful lives
in the community.

[16] These factors must be taken together with the fact that life
imprisonment is the most stringent sentence that our courts can impose.1
Then there must be an overall assessment of whether on the facts of this
case a sentence of life imprisonment is proportionate to the offence
committed by the applicants.2  In making that latter assessment the court
will always be conscious of other cases in which it has had to consider
the appropriate sentence to be imposed for serious crimes, and the
assessment in those cases of which crimes are truly the most heinous and
warrant the heaviest sentence. I see no point in reciting those cases as
they all turn on their own facts, but they inevitably form a backdrop to
the sentencing process in terms of the legislation prescribing certain
minimum sentences for serious crimes. In the present case I think that the
factors I have identified in the context of the case as a whole and my
assessment of whether the sentence of life imprisonment is appropriate
here, leads to the conclusion that there were substantial and compelling
circumstances justifying a departure from the statutorily prescribed
minimum sentence. For those reasons the applications for leave to appeal
against sentence should be granted and the appeals upheld to the extent
set out in the next paragraph.

[17]  I have already held that there were substantial and compelling
circumstances justifying a departure from the sentence of life
imprisonment on the charge of murder. In my view that sentence should
be set aside and replaced with a sentence of 20 years’ imprisonment in
respect of each of the applicants. The sentences on the other two counts
were appropriate for those offences, but were originally as required by
law made to run concurrently with the sentence of life imprisonment in

1 Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 (SCA) para 13.
2 S v Vilakazi 2009 (1) SACR 552 (SCA) paras 18-20.

each case. I do not think it appropriate for them to run concurrently with
the sentence for the murder of Mr Tshilidzi as they related to crimes
perpetrated against Mr Funanani. But insofar as he was concerned they
formed part of a single train of events. I accordingly think that they
should be confirmed and that it should be ordered that they run
concurrently with one another. That has the result that an effective
sentence of 23 years’ imprisonment is imposed for all the crimes of
which the applicants have been convicted.

[18] The following order is accordingly made:
The applications for leave to appeal against conviction are
dismissed.
Leave to appeal against the sentences imposed on the applicants is
granted.
The appeals against sentence are upheld.
The sentence on count 1 (murder) is set aside and replaced by a
sentence of 20 years’ imprisonment in respect of all three appellants.
The sentence on count 2 (assault with intent to commit grievous
bodily harm) of three years’ imprisonment is confirmed in respect of all
three appellants.
The sentence of three years’ imprisonment imposed on the second
and third appellants in respect of count 3 (kidnapping) is confirmed and it
is ordered that this sentence is to run concurrently with the sentence
imposed in respect of count 2.

M J D WALLIS
JUDGE OF APPEAL

Appearances
For appellant:
L M Manzini
Instructed by:
Justice Centre, Thohoyandou
For respondent:
A I S Poodhun
Instructed by:
National Director of Public Prosecutions.