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[2015] ZAWCHC 156
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Memani and Another v S (A75/2015) [2015] ZAWCHC 156 (26 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO: A75/2015
DATE:
26 OCTOBER 2015
REPORTABLE
In the matter
between:
WANDISILE
MEMANI
..............................................................................................
1st
APPELLANT
MONDE
QINA
...........................................................................................................
2nd
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT: 26
OCTOBER 2015
GAMBLE, J:
INTRODUCTION
[1] The two
appellants appeared before the regional magistrate, Blue Downs on
five charges:
1.1 Attempted murder
1.2 Murder
1.3
Attempted murder
1.4
Robbery with aggravating
circumstances; and
1.5
Illegal possession of a firearm.
[2] They were duly
convicted on all five counts in March 2013 and were each sentenced as
follows (no distinction being drawn between
either appellant)
2.1 Count 1
(Attempted murder) – 15 years imprisonment
2.2 Count 2
(Murder) – Life imprisonment
2.3 Count 3
(Attempted murder) – 5 years imprisonment
2.4 Count 4 (Robbery with
aggravating circumstances) – 15 years imprisonment
2.5 Count 5
(Unlawful possession of a firearm) - 5 years imprisonment.
Pursuant to the provisions
of
sec 39
of the
Correctional Services Act 111 of 1998
, all of the
other sentences must run concurrently with the life sentences on
count 2.
[3] The appellants
now seek to appeal against the findings of the trial court. In
respect of the 1
st
appellant his appeal is against sentence only. In respect of the 2
nd
appellant, his appeal is against both conviction and sentence on all
counts. The appeals are brought in terms of sec 309(1) of
the
Criminal Procedure Act , 51 of 1977 (“the CPA”) as
amended in 2013 , which grants the appellants an automatic right
of
appeal in circumstances where a sentence of life imprisonment is
imposed.
[1]
THE
SHOOTING AT MFULENI
[4] The incident which
gave rise to the appellants’ convictions occurred on 17
September 2009 at Mfuleni on the Cape Flats
at a supply store called
‘Bafana Cash Store’ belonging to a Somali trader by the
name of Mahamud Mahamed Abdi who ran
the store with a relative Ahmed
Mohamed Dhahir. On the morning in question Mr Abdi went to purchase
stock from a wholesaler in
Philippi known as “Cash and Carry”.
The wholesaler provided a service to its clients in terms whereof
stock purchased
was delivered in one of its trucks to the trader’s
premises. Accordingly at some time between 09h00 and 10h00 Mr Abdi
and
a driver from “Cash and Carry”, Mzuvukile Lutyu,
drove to Mfuleni in a white Nissan Hardbody bakkie (‘the white
Nissan”) belonging to “Cash and Carry”. The goods
which had been purchased were carried on the open load box
of the
white Nissan.
[5] On arrival at the
store Mr Dhahir was waiting at the door to help unload the white
Nissan. Mr Abdi stood on the back of
the vehicle and tossed
various items to Mr Dhahir who packed them in the shop. Mr Lutyu
joined in and helped. Mr Dhahir testified
that all of a sudden shots
rang out. He looked up and saw a man standing behind the white Nissan
holding a firearm in his hand.
He saw shots being fired in the
direction of Mr Abdi and the driver, who at that stage was standing
in the vicinity of the driver’s
door of the bakkie. Shots were
fired in Mr Dhahir’s direction too but he was fortunate not to
be hit.
[6] A post-mortem
examination later showed that Mr Abdi had been struck by a single
bullet on the crown of his head - he had apparently
been shot as he
was bending down to pick up supplies on the back of the white Nissan.
It appears that Mr Abdi collapsed on the
back of the bakkie while two
men, one of whom was the man who had discharged the firearm, jumped
into the vehicle and sped off.
[7] Mr Lutyu testified
that he had been shot twice - once in the chest and once in the head.
He was most fortunate to survive the
attack with minimal injury, and
to be able to give evidence about it. He testified that he was able
to summon help from an ambulance
on his cell phone and also reported
to his employer what had happened. The white Nissan was equipped with
a vehicle tracking system
and in no time at all the local police were
informed thereof. A representative of the tracking company located
the GPS position
of the vehicle and furnished that to the police. Two
police officers on patrol in Mitchell’s Plain received
information as
to the alleged whereabouts of the bakkie and hastened
there. Upon their arrival they found the white Nissan parked in the
street
and saw somebody busy spraying blood off it with a garden
hose. The two appellants were found in the immediate vicinity of the
vehicle and a handgun was found behind the front seat. The appellants
were arrested and taken into custody.
[8] En route to the
Mitchells Plain police station the police were informed by the 2
nd
appellant where the deceased’s body could be found. As a result
of that information other members of the police drove to
a deserted
area close to the False Bay College campus on the outskirts of
Khayelitsha where they found the deceased covered with
used cardboard
boxes.
THE
PROCEEDINGS IN THE REGIONAL COURT
[9] At their trial in the
regional court the appellants pleaded not guilty and chose not to
disclose the basis for their defences.
The State presented the
evidence of several witnesses including Messers Dhahir and Lutyu and
one Babalo Mhlati. Mhlati ,
a younger cousin of the 2
nd
appellant (he wrote his matric examinations at the end of 2009), had
been with the 2 appellants on the day in question. When
he
testified it became clear that he had previously been arrested with
the appellants and had been required to depose to a warning
statement
in regard to the events of the day in question. The witness alleged
an assault by the police prior to deposing to that
statement.
[10] Later the prosecution
evidently decided not to pursue charges against Mhlati, the thinking
being that he might rather be used
as a State witness. To this end he
deposed to a detailed witness statement a considerable time after the
killing. When Mhlati
testified it was apparent that he could be
considered to have been a potential accomplice of the appellants.
Nevertheless, the
State did not ask for the witness to be warned in
terms of sec 204 of the CPA and his evidence must therefore be
considered in
light of the fact that he was not given the opportunity
to fully unburden himself without being exposed to the possibility of
prosecution.
[11] The State witnesses
collectively placed both appellants on the scene of the crime. Mr
Dhahir positively identified the 1
st
appellant as the man
who discharged the firearm. Mr Lutyu, while less convincing, also
implicated the 1
st
appellant. Both eye witnesses also
confirmed the presence of two assailants, one of whom was the gunman
Mhlati implicated both
appellants in the attack that took place at
the store, while a police officer also found traces of primer residue
on the hands
of the 1
st
appellant – a fact which
suggested that he had recently handled a firearm which had been
discharged.
THE
EVIDENCE OF BABALO MHLATI
[12] Mhlati placed himself
and both of the appellants on the scene of the crime in Mfuleni. He
described how the firearm involved
( a .38 Special revolver) had been
procured by a friend (referred to only as ‘Mazwe’) from
somebody in the Strand the
day before the attack, after the 2 cousins
and Mazwe, had driven there to that end. He told how the 2
nd
appellant had handed the firearm to the 1
st
appellant at
his home in Delft upon their return from the Strand. Mhlati also told
the court how he, the two appellants and Mazwe
had been involved in
an attempted robbery earlier on the same day as the Mfuleni shooting
at a business in Parow where the firearm
in question had been
discharged by the 1
st
appellant. From the evidence it
appears that the Parow robbery had been unsuccessful and that the
victim (the owner of a spare
parts business) had returned fire at the
robbers. The 1
st
appellant admitted that he had discharged
the firearm during the Parow incident.
[13] Thereafter, said
Mhlati, the gang of would-be robbers, who were travelling in an Isuzu
bakkie (and which for convenience I
shall call “the robbers’
bakkie”), went in search of a fresh target. He said that the
1
st
appellant mentioned a place in Phillipi where they
might find Somali people. They then drove to a shop where they saw a
bakkie
being loaded by people they believed to be of Somali origin.
Mhlati said that the 2
nd
appellant then handed the 1
st
appellant some ammunition with which to re-load the revolver that he
had on him – the same revolver, it seems, that he (2
nd
appellant) had procured in the Strand. Evidently, the 1
st
appellant brazenly told his friends in Philippi that if they did not
accompany him he would do the job himself. Apparently he and
the 2
nd
appellant thereafter got out of the robbers’ bakkie and
approached the alleged Somali persons, but the 2 aspirant robbers
were unable to confront them before they drove off.
[14] Mhlati described how
they then tailed the white Nissan in their bakkie which was driven by
Mazwe. They turned off the R300
highway at the Hindle Road off-ramp
and followed the white Nissan into Mfuleni (which lies to the east of
the R300 and to the north
of the N2) where it drove up to a shop. The
robbers’ bakkie was parked some distance away from the shop and
while Mazwe and
he remained in their vehicle, said Mhlati, the
appellants set off down the road towards the white Nissan with the
1
st
appellant walking ahead. He went on to describe how
the 1
st
appellant opened fire on the scene, and how the
white Nissan thereafter sped off with the 2
nd
appellant as
the driver.
THE
ISSUES ON APPEAL
[15] In light of the fact
that the 1
st
appellant does not attack his conviction this
court can safely assume, as did the trial court, that he was the
shooter on the day
in question. Although in the trial court the 1
st
appellant denied shooting at the Mfuleni scene and claimed that the
primer residue found on his hands was linked to the Parow shooting,
his version was riddled with lies and improbabilities and little more
need be said about his involvement in the Mfuleni incident.
I shall
revert later to his appeal against sentence but would merely observe
at this stage that on appeal the 1
st
appellant offers no
challenge to the facts surrounding the event as found by the trial
court.
[16] The 2
nd
appellant persists in his appeal against conviction on all counts and
against all of the sentences imposed. The notice of appeal
filed on
his behalf by his erstwhile attorney in December 2013 is a long and
convoluted document. It does not accord with the rules
of court in
that it contains long passages of legal doctrine and argument
interwoven with narrative about the events in question.
It is truly
problematic to establish precisely what the grounds of appeal are.
Fortunately, Mr du Preez, counsel who now represents
the 2
nd
appellant, was able to make sense of it and address us fully on the
merits of the appeal and on sentence.
AN
OVERVIEW OF THE EVIDENCE BEFORE THE TRIAL COURT
[17] The regional
magistrate gave a detailed judgment and evaluated all of the
evidence. He observed that the evidence of Mhlati
had to be
approached with caution given that he was essentially in the position
of an accomplice witness. I agree with that approach,
save to say
that the witness cannot really be blamed for attempting to downplay
his role in the events of that day, given that
he had not been
offered indemnity from prosecution. There were also discrepancies
between Mhlati’s evidence, his warning
statement and his
witness statement which further necessitated the careful assessment
of his testimony. Fortunately, however, there
is sufficient
corroboration of Mhlati’s evidence, whether by way of other
direct testimony, objectively verifiable facts
or consideration of
the probabilities. And, as I shall attempt to demonstrate later, the
contentious aspect of the 2
nd
appellant’s evidence
is of narrow ambit.
[18] That being said, the
evidence of the eye witnesses (Messers Dhahir and Lutyu) who were
able to observe what was happening albeit
in a volatile and moving
environment, described the conduct of the two robbers that they
observed on the scene in terms which certainly
suggest that they were
acting in concert. The witnesses described how the robbers took off
in the white Nissan and sped off with
the hapless deceased and the
1
st
appellant on the back of the bakkie and the 2
nd
appellant in the driver’s seat. Given the stance adopted by the
1
st
appellant on appeal there is no debate regarding his
presence on the scene nor that he opened fire on the scene. In
addition, before
the trial court the 2
nd
appellant
admitted that he was on the scene with the 1
st
appellant
and that he drove the white Nissan from there to Mitchells Plain,
claiming in his defence that he was an unwilling partner
in the
murder and subsequent robbery. This defence is the only issue truly
in contention in the 2
nd
appellant’s evidence.
[19] The 2
nd
appellant’s version, briefly, was that after Mawze had stopped
the robbers’ bakkie a short distance away from the cash
store,
he had accompanied the 1
st
appellant as the latter walked
down the road to go and collect a debt allegedly due to him by an
unidentified person of Somali
extraction. The 2
nd
appellant said that when they got to the white Nissan the 1
st
appellant suddenly drew out a firearm and began shooting. He claimed
he was caught unawares and when the 1
st
appellant shouted
at him to drive the bakkie away from the scene he complied with this
instruction. The 2
nd
appellant said that as he drove off
he saw that the 1
st
appellant was on the back of the
bakkie with the deceased. Somewhere along the way he stopped very
briefly so that the latter could
climb into the cab with him. After
they had dumped the body of the deceased in the veld, the 2
nd
appellant said that the 1
st
appellant had ordered him to
drive to Delft (which lies approximately to the west of Mfuleni) but
that he had ignored him and driven
in a southerly direction (towards
the sea at Strandfontein) on his way to the home of his friend
Sithembiso Nene in Mitchells Plain,
where he was almost immediately
apprehended by the police.
[20] Before the trial
court the 1
st
appellant identified Mhlati as the shooter
and Mazwe as the person who accompanied Mhlati as they walked down
the road at the Mfuleni
scene. He said that he and the 2
nd
appellant had remained seated in the robbers’ bakkie when this
happened. The 2
nd
appellant on the other hand identified
the 1
st
appellant as the shooter while Mhlati, as I have
said, testified that he and Mazwe waited in the robbers’ bakkie
while the
2 appellants went off on foot to steal the white Nissan. He
claimed to have seen the 1
st
appellant shooting at the
deceased and the 2
nd
appellant driving the white Nissan
away from the scene with the 1
st
appellant on the back.
[21] The evidence
of the co-perpetrators implicating the 2
nd
appellant is truly a mishmash of allegation and counter allegation
but ultimately the test is whether his purported exculpatory
version
presented to the trial court can be considered to be reasonably
possibly true in the circumstances. In my view the correct
way to
evaluate that claim is to look at the testimony of the eye witnesses,
(Messers Dhahir, Lutyu, and Mhlati) and assess the
veracity of the
2
nd
appellant’s version in the light of that evidence, his
performance in the witness box and the general probabilities.
[22] We are bound to
respect the credibility findings of the regional magistrate, who was
impressed with the eye witnesses as reliable
and honest,
notwithstanding the fact that the scene was mobile, that they were
emotionally charged with fear and that their opportunity
for
observation was of short duration. The fact that both appellants
placed themselves on the scene, albeit at the periphery (in
the case
of number one) and less involved (in the case of number two) reduces
the likelihood of mistaken identification by the
eye witnesses. But
what is more important about the latters’ evidence is the way
in which they describe the behaviour of
the 2 assailants, suggesting
that they were acting in concert.
ASSESSMENT
OF THE EVIDENCE OF THE 2
ND
APPELLANT
[23] The veracity of the
2
nd
appellant’s claim that he did not know that his
co-perpetrator was armed as they walked down the road, that he did
not know
that a robbery was about to take place, and that when it
did, he was seemingly coerced by the 1
st
appellant into
driving the white Nissan away from the scene, must be considered in
light of the following evidential material –
·
The 2
nd
appellant’s admission that he had accompanied Mazwe and Mhlati
the day before the killing to the Strand where a .38 Special
revolver
was acquired from a certain Tshipa ;
·
Mhlati’s allegation that after
the 3 returned from the Strand the firearm was handed to the 1
st
appellant by Mazwe in his and the 2
nd
appellant’s presence;
·
The 2
nd
appellant’s evasiveness in the witness box about the
acquisition of the firearm notwithstanding that he was admittedly in
the car and had briefly handled the firearm on the way back from the
Strand;
·
The common cause fact that the
following day all 4 men travelled together in their bakkie to Parow
where at least the 1
st
appellant went into the motor spares business armed with the revolver
with the intention of robbing the owner;
·
The common cause fact that shots
were fired during the Parow incident by the 1
st
appellant and the owner of the business and that the former returned
to the robbers’ vehicle with the firearm still in his
possession;
·
The evidence by Mhlati regarding the
2
nd
abortive robbery at the Philippi store and, importantly, his evidence
that the 2
nd
appellant had provided the 1
st
appellant with ammunition to re-load the firearm, as also the fact
that the 1
st
appellant was willing to ‘go it alone’ if need be –
an indication that he was prepared to use the firearm if
necessary;
·
Mhlati’s allegation that
when the white Nissan left the shop in Philippi it was followed by
the robbers’ vehicle both
along the R300 highway and when it
turned off in the general direction of Mfuleni ;
·
Mhlati’s evidence that,
whereas he and Mazwe wanted to go in the direction of Delft, the 1
st
appellant insisted that they follow the white Nissan into Mfuleni;
·
Mhlati’s evidence that
as they turned off the R300 the 1
st
appellant had the firearm in his hand;
·
The common cause evidence that the
robbers’ bakkie followed the white Nissan through the streets
of Mfuleni and that eventually
it was stopped a short distance away
from the cash store, at all times with the white Nissan in their line
of sight;
·
Mhlati’s evidence
regarding the 1
st
appellant’s utterance as he was alighting from the robbers’
vehicle at Mfuleni to the effect that they should approach
the white
Nissan, and that at the same time the 2
nd
appellant had said that he was going to drive the white Nissan;
·
The common cause fact that when they
left Mfuleni the 2
nd
appellant drove the white Nissan at high speed towards Khayelitsha
with the 1
st
appellant still on the back of the bakkie;
·
The common cause fact that the
robbers’ bakkie was also driven (in convoy as it were) towards
Khayelitsha at high speed;
·
The 2
nd
appellant’s admission in evidence that he helped dispose of the
body in the veld not far from his home in Ilitha Park in
Khayelitsha,
and that he then drove the white Nissan to his friend’s house
in Mitchells Plain, in the process ignoring the
instruction by the
1
st
appellant to drive to Delft (which is where he, Mazwe and Mhlathi
stayed), and which I have noted, is in a completely different
direction to Mitchells Plain;
·
The 2
nd
appellant’s initial assertion, during the cross examination by
his attorney of Mhlati, that there was no attempted robbery
in Parow
that day;
·
The fact that during their evidence
in this matter both appellants readily admitted that there had been
an attempted robbery in
Parow earlier in the day, that they had been
involved therein and that they subsequently tendered guilty pleas in
another court
in regard thereto;
·
The detailed vehicle log of the
white Nissan presented in evidence by the employee of the tracking
company, the contents whereof
I shall discuss later.
[24] The trial court
listed an extensive list of improbabilities in the 2
nd
appellant’s version which it found pointed to his guilt. I
generally agree with the regional magistrate’s findings
in this
regard but do not intend traversing them in any detail because many
of them are effectively dealt with by the considerations
I have
referred to above. The trial court went on to find that these
improbabilities rendered the 2
nd
appellant’s version
not reasonably possibly true in the circumstances. Interestingly, the
regional magistrate chose not to
discredit the 2
nd
appellant as such, something which in my view would have been
entirely justified given his poor performance in the witness box.
[25] In light of the
problems surrounding the credibility and reliability of Mhlati’s
evidence, one cannot say conclusively
(as the regional magistrate
found) that the State’s case established that the 2
nd
appellant was a willing participant in the intentional killing of the
Mr Abdhi. But, as will be seen shortly, the focus of the
case against
the 2
nd
appellant was not this aspect but rather his involvement in the
robbery of the white Nissan. I am of the considered view that the
extent of the participation of the 2
nd
appellant in the robbery at Mfuleni can be determined on his own
version. This has its foundation, firstly, in the cross examination
of Mhlati by the attorney for the 2
nd
appellant in which it was suggested that the 2
nd
appellant’s version would be that after the shots were
discharged by the 1
st
appellant (clearly the shots fired at the deceased and the eye
witnesses), he pointed the firearm at the 2
nd
appellant and told him to drive the white Nissan. Next, there is
Mhlati’s agreement with the attorney’s suggestion
that
his client did not know that a shooting was imminent, adding that he
too was unaware thereof – the import of the witness’
conclusion being the fact that the 1
st
appellant made no mention thereof as he alighted from the robbers’
bakkie.
[26] Thereafter, in the
cross examination of the 1
st
appellant, the attorney for
the 2
nd
appellant suggested that his client jumped into
the bakkie out of fear for his co-accused. The 1
st
appellant denied this given his defence that he did not at any stage
alight from the robbers’ bakkie at the cash store. However,
in
his evidence-in-chief the 2
nd
appellant did not
specifically testify regarding any threat from the 1
st
appellant, or that he experienced a sense of compulsion to steal the
white Nissan when the shots went off –
“
Toe u nou
sien die persoon[Mr Abdhi]word geskiet wat het u gedink? --- Ek was
geskok.
Toe wat doen u? ---
Terwyl ek nog so gestaan het en so toe sê hy [the 1
st
appellant] vir my ek moet die voertuig ry……….
…………
En
wat het u gedink toe hy vir u sê jy ry die bakkie en hy wys die
vuurwapen na u toe. Wat het u gedink? ---
Ek
kon niks anders doen behalwe om te ry nie dis wat ek gedink
het.
Wat het u gedink wat
gaan beskuldigde 1 doen as u nie in die bakkie klim nie? ---
Ek
kan nie vir hom dink nie.
Nee, nee, ek sê
nie u moet dink vir hom nie. Wat het u gedink gaan beskuldigde 1 doen
as u weier om in die bakkie te klim?
---
Ek
het niks anders gedink nie. Ek het niks anders gedink nie, want as hy
so daai kon gedoen het, het ek geen ander keuse gehad behalwe
om te
ry nie, want ek kan nie vir hom dink nie. Ek het nie geweet wat in sy
gedagte (sic) aangaan nie.
”
(Emphasis added)
[27] Under cross
examination by the 1
st
appellant’s attorney, the 2
nd
appellant did not deviate from this response –
“
Remember
in Parow you said according to your version you heard a shot and then
you ran away or were you not shocked in Parow? ---
In general you
will be shocked when you hear some gunshots so I was shocked and I
ran.
Which is
what you could have done also here in Mfuleni? --- How could I ran
(sic) away
because I was
instructed to drive the bakkie and he [the 1
st
appellant] was looking at me.
“
The cross examination by
the State was of limited ambit and did not traverse the 2
nd
appellant’s state of mind, either during the shooting or the
subsequent robbery.
THE
DEFENCE OF COMPULSION
[28] The passages
which have been highlighted above do not in my view establish a
factual basis for the alleged defence of compulsion
(or ‘necessity’
as it is more properly referred to in our law) in relation to the
robbery, which was the defence suggested
in the cross examination of
the eye witnesses. The leading case in this regard remains
Goliath
[2]
in which Rumpff JA delivered the judgment for the majority , Wessels
JA dissenting. The judgment of Rumpff JA contains an extensive
study
of the common law principles of the defence of necessity in, inter
alia, South Africa, England, Scotland, the United States
and
Continental Europe. It is not necessary for the purposes of this
judgment to restate the position in our law other than to
say the
following.
[29] A defence of
necessity can now be raised in a case of murder.
[3]
Whether a defence of necessity will lead to an acquittal will be
dependent on the particular circumstances of the case at hand
and a
careful consideration of the entire factual matrix which must be
examined and adjudicated upon with the utmost care. As the
majority
decision in
Goliath
demonstrates
[4]
,
a defence of necessity in criminal proceedings involves
considerations of reasonableness, morality and ethics.
“
By die
toepassing van ons strafreg, in die gevalle wanneer die handeling van
‘n beskuldigde volgens objektiewe standaarde
beoordeel word,
geld die beginsel dat aan die beskuldigde nooit hoër eise gestel
word nie as wat redelik is en redelik beteken
in hierdie verband dit
wat van die gewone deursnee-mens in die besondere omstandighede
verwag kan word. Dit word algemeen aanvaar,
ook deur die etici, dat
vir die gewone mens in die algemeen sy eie lewe belangriker is as die
lewe van ‘n ander. Alleen hy
wat met ‘n kwaliteit van
heroisme bedeeld is, sal doelbewus sy lewe vir ‘n ander offer.
Indien die strafreg dus sou
bepaal dat dwang nooit as verweer teen ‘n
aanklag van moord kan geld nie, sou hy vereis dat ‘n person wat
‘n
ander onder dwang dood , afgesien van die omstandighede,
moes voldoen het aan ‘n hoër vereiste as wat aan die
deursnee-mens
gestel word. So ‘n uitsondering op die algemene
beginsel wat in die strafreg toegepas word, skyn my nie geregverdig
te wees
nie.”
[5]
[30]
Hercules
[6]
concerned a case of murder in the context of an intention on the part
of 3 co-perpetrators to commit a robbery. The facts, which
relate to
an incident that occurred more than 60 years ago, bear a fair
resemblance to the case at hand. The appellant and 2 others
set out
on the night in question to rob. The appellant was in possession of a
toy revolver, while one of the others (W) was armed
with a proper
revolver. The material facts were set out by van den Heever JA as
follows -
“
In the
first abortive attempt to hold up a shopkeeper, in which appellant
took no active part, [W] fired and wounded the shopkeeper
whereupon
the robbers ran away. Thereupon the party essayed another shop,
where, upon the proprietor evincing an intention to resist,
[W] fired
a shot which killed a bystander, [G].
[W]’s
defence was that he had no intention to kill as he thought the
revolver was loaded with blanks. Appellant maintained
that he went on
the second and fatal robbing expedition under duress, as [W]
threatened to shoot him if he did not accompany him.
Appellant
moreover stated in evidence that when he and [W] were about to enter
the second shop , he saw a person whom he knew and
by whom he would
be recognised within the building; he was just about to retire in
order to avoid recognition when the shot [which
killed G] was fired
[by W].”
[31] It is important to
note that the trial in
Hercules
was before a jury and much of
the decision on appeal revolved around the directions given by the
trial judge to the jury and possible
irregularities in relation
thereto. In any event, on the facts before them the jury had
convicted W of murder and the appellant
of culpable homicide,
believing that the evidence showed that W had exercised a certain
amount of coercion over the appellant,
and that this had impacted on
his
mens rea
to the extent of negativing
dolus.
[32] Van den Heever
JA commenced his analysis of the law by referring to the judgment in
Geere
[7]
where at 322 H - 323 B Schreiner JA said the following -
“
Where in
murder one is dealing not with an actual desire to kill but with an
intention that is ‘legal’ or imputed and
the common
purpose of several persons is in question, the inquiry relates to the
intention to do the dangerous act, together with
the contemplation of
the probable or possible fatal result and the recklessness as to
whether it comes to pass or not. To have
a sufficient common purpose
to murder, the persons need not plan together to bring about the
death, any more than the single accused
must be shown to have aimed
at the death before he can be found guilty of murder. So, in the case
of culpable homicide it is enough,
to make all responsible for the
death, that there was a common purpose to do the unlawful act or acts
which caused the death, without
the elements of contemplation of the
death and recklessness, which would make them guilty of murder.”
I should add that
Schreiner JA, with reference to
Duma
[8]
and
Shezi
[9]
,
observed in
Geere
that he was not dealing with the effect of the use of a lethal weapon
by one of the actors on the mind-set of the others who were
not so
armed.
[33] In
Hercules
[10]
van den Heever JA dealt firstly with the forms of
mens
rea
that were consistent with the
evidence in that case.
“
It is
clear therefore that by putting into execution an unlawful common
purpose if an unintended death results a person may commit
culpable
homicide.
It does not
follow, however, as was suggested in argument, that where a common
purpose is established the same intent or absence
of it must be
imputed to all who take part in its execution. Because of the
difficulty of proving a person’s mental processes
it will often
be difficult to differentiate in this regard between the joint
wrong-doers. It is a matter of inference, however;
but it cannot be
based, as the learned Judge [a quo] stated in his summing up, on what
the appellant ought to have foreseen, but
upon what he must have
foreseen. Apart from recklessness whether death, the probability or
possibility of which was foreseen, results,
that is
dolus
in law, a person cannot commit murder by negligent conduct.”
[34] Van den Heever
JA went on to remark that our Roman Dutch authorities recognise that
the criminal intent of each individual
participant in an offence
based on the principle of common purpose “
was
not necessarily coextensive with that of his accomplice”
.
The learned Judge of Appeal highlighted the following passage in
Parry
[11]
where Innes CJ summarised the approach thus –
“
The
fallacy of that argument lies in the assumption that the guilt of a
socius criminis
who assists in the commission of a crime is necessarily dependent on
the guilt of the actual perpetrator. The true position is
that though
such a
socius
is equally guilty, his guilt results from his own act and his own
state of mind. It is the existence of criminal intent in each
of
those who jointly commit a crime which entails upon each a criminal
responsibility.
Mens rea
must exist independently in both - not in the chief actor alone.”
[35] As I have already
said, there can be little doubt that the intention on the part of the
1
st
appellant during this incident was to kill. The
regional magistrate found that the murder was premeditated and that
the appellants
had
dolus directus.
The correctness of this
finding in respect of the 1
st
appellant is not something
which falls to be determined in this appeal given that he has not
sought to appeal his conviction. However,
the enquiry in relation to
the 2
nd
appellant’s guilt is to be determined as
follows.
·
Firstly, did the State establish
beyond reasonable doubt an
actus reus
on
the part of the 2
nd
appellant?
·
Secondly, once such
actus
reus
is proved, did the State establish
what the form of the 2
nd
appellant’s criminal intention was? More particularly, was it
his intention to kill Mr Abdhi or to rob him? And in relation
to the
former was there
dolus directus
or
eventualis
?
THE ACTUS REUS
[36] The first
enquiry requires the court to consider whether there was unlawful
voluntary conduct on the part of the 2
nd
appellant.
[12]
The evidence of Mhlathi generally places the 2
nd
appellant in the company of the 1
st
appellant at Mfuleni immediately before the shooting, as they alight
from the robbers’ bakkie and walk down the road in the
general
direction of the cash store. There is no suggestion on the part of
Mhlati or the 2
nd
appellant that the latter was in any way threatened or coerced by the
1
st
appellant to do so. The 2
nd
appellant himself testified that he willingly accompanied the 1
st
appellant as the latter allegedly went to collect money from a Somali
person: he was manifestly a voluntary participant at that
stage.
[37] The evidence of
Mhlati in fact went further than just placing the 2
nd
appellant on the scene. He testified in chief that as the 2
nd
appellant left their vehicle he said that he was going to drive the
white Nissan - on Mhlati’s version there was no talk
of going
to collect a debt owed to the 1
st
appellant. If that
evidence is to be believed then there can be little doubt that the
State had established that the 2
nd
appellant had formed
the intention, at least, to steal the vehicle. There was no direct
challenge under cross examination by the
2
nd
appellant’s
legal representative to this allegation by Mhlati, his version being
encompassed in the “debt collection”
allegation. I shall
revert to a more detailed assessment of Mhlati’s evidence
shortly.
[38] The
actus reus
of
the 2
nd
appellant is evident as he drives the white Nissan
away from the scene of the shooting and stops , firstly in the veld
to dump
the body, and then a short while later in Mitchells Plain
where the vehicle is delivered into the safe-keeping of Nene. Was
this
part of the 2
nd
appellant’s
actus
both
unlawful and voluntary? Certainly, the intentional removal and
subsequent retention of control over the white Nissan occurred
without the consent of Mr Lutyu and was manifestly unlawful.
[39] As to voluntariness,
the evidence of Mhlati establishes that the 2 appellants set off down
the road together, either to rob
the Somali trader either of his
recently purchased stock, or Lutyu of the white Nissan, or to commit
both offences. Is his evidence
- that the 2
nd
appellant
announced an intention to drive the bakkie away from the scene while
the 1
st
appellant openly brandished the firearm -
sufficiently reliable and worthy of credence? I believe that it
is, and I say so
for a number of reasons.
·
Firstly, there is the fact that
Mhlati is the cousin of the 2
nd
appellant and given that it was common cause that there was no family
feud or animosity between them, he does not appear to have
a reason
to falsely implicate the latter;
·
Secondly, there is his allegation
that the 2
nd
appellant was a fellow passenger in the car which drove to the Strand
the previous day to procure a firearm, a fact confirmed by
the 2
nd
appellant;
·
Thirdly, there is Mhlati’s
testimony regarding the participation of both appellants as
accomplices in the abortive attack
on the Parow spares shop earlier
that day – participation which was corroborated by the guilty
pleas offered in the criminal
proceedings arising from that incident;
·
Fourthly, Mhlati’s evidence as
to the route taken by the white Nissan from Philippi to Mfuleni that
morning is corroborated
by the vehicle tracking log. This lends
credence to his version that the robbers were also in Philippi that
morning on a surveillance
mission and that they followed the white
Nissan to Mfuleni. If the robbers had not driven to Philippi that
morning it is difficult
to understand how Mhlati would have known of
the route taken by the white Nissan from Parow to Mfuleni?
·
Finally, Mhlati’s evidence
sits more comfortably with the probabilities- that this was a gang of
robbers on the prowl that
day for a target(s) to rob. As part of the
weighing up of the factual matrix associated with those
probabilities, it is unlikely
that the 2 appellants walked down the
road in Mfuleni to collect a debt but rather to steal , by force if
necessary.
[40] In conclusion, in
considering the voluntariness of the 2
nd
appellant’s
conduct regarding seizure of the white Nissan, I must have regard to
his own testimony and the allegations made
to suggest compulsion,
which I have set out above. I do not believe that the 2
nd
appellant put up a case to sustain any claim that he was coerced by
the 1
st
appellant to participate that day. His evidence
established no more than that the 1
st
appellant shouted at
him to take control of the vehicle, something quite feasible in the
mayhem that follows an attack such as
this. Accordingly, I am
satisfied that the
actus reus
of the 2
nd
appellant
as a co-perpetrator in the robbery was conclusively established on
the evidence before the court
a quo.
MENS REA OF THE 2
ND
APPELLANT
[41] What then of the 2
nd
appellant’s
mens rea?
In the light of my findings above
there can be little debate that he had the direct intention to rob
the white Nissan and the supplies
that were still on it when he and
the 1
st
appellant reached it.
[42]
Mens
rea
in the form of
dolus
eventualis
is a concept which has
troubled both academics and practitioners for ages. Recently, in
Humphreys
[13]
the Supreme Court of Appeal pronounced on the issue once again in a
case involving a notorious incident on the outskirts of the
Cape
Metropole in which the driver of a school bus ignored the warning
signs and booms at an unguarded level crossing and collided
with an
oncoming train causing the death of 10 of the scholars and injuries
to another 4. In the High Court the appellant was convicted
of
murder.
[43] On appeal Brand JA
delivered the unanimous judgment of the court, finding that the
evidence established the appellant’s
guilt on a charge of
culpable homicide and not murder. It is apposite for the purposes of
this appeal to refer to the following
passages of the judgment:
“
[12]
Nonetheless…..the fact remains that a voluntary act and dolus
are two discrete requirements
for a
conviction of murder. It follows that the presence of the one does
not presuppose the existence of the other. Despite the
establishment
of voluntary conduct, the question therefore remains: did the court a
quo correctly find that the appellant had the
requisite intent to
cause the death of 10 of his passengers and attempt to take away the
life of 4 of the others? In arriving at
the conclusion that he did,
the court accepted, rightly in my view, that the appellant had desire
to bring about the death of his
passengers. Consequently it found
that the appellant did not have dolus directus or direct intent. What
the court did find was
that he had intent in the form of douls
eventualis or legal intent. In accordance with trite principles, the
test for douls eventualis
is twofold:
(a)
Did the appellant
subjectively foresee the possibility of the death of his passengers
ensuing from his conduct; and
(b)
Did he reconcile himself with that
possibility (see e.g.
S v De
Oliveira
1993(2) SACR 59 (A) at
65i-j)?
Sometimes the element
in (b) is described as ‘recklessness’ as to whether or
not the subjectively foreseen possibility
ensues (se e.g.
S v
Sigwahla
1967(4) SA 566 (A) at 570). I shall return to this
alternative terminology, which sometimes gives rise to confusion.
[13] For the first
component of dolus eventualis it is not enough that the appellant
should (objectively) have foreseen the possibility
of fatal injuries
to his passengers as a consequence of his conduct, because the
fictitious reasonable person in his position would
have foreseen
those consequences. That would constitute negligence and not dolus in
any form. One should also avoid the flawed
process of deductive
reasoning that, because the appellant should have foreseen the
consequences, it can be concluded that he did.
That would conflate
the different tests for dolus and negligence. On the other hand, like
any other fact, subjective foresight
can be proved by inference.
Moreover, common sense dictates that the process of inferential
reasoning may start out from the premise
that, in accordance with
common human experience, the possibility of the consequences that
ensued would have been obvious to any
person of normal intelligence.
The next logical step would then be to ask whether, in the light of
all the facts and circumstances
of this case, there is any reason to
think that the appellant would not have shared this foresight,
derived from common human experience,
with other members of the
general population.”
[44] Brand JA then
considered the facts before him and came to the conclusion that the
trial court had correctly established the
element of subjective
foresight on the part of the appellant. Turning to the second element
of
dolus eventualis
(reconciliation
with the foreseen possibility) Brand JA cited the judgment of Jansen
JA in
Ngubane
[14]
at 685A-H and continued as follows:
[16] The question is,
therefore, whether it had been established that the appellant
reconciled himself with the consequences of
his conduct which he
subjectively foresaw. The court a quo held that he did. But I have
difficulty with this finding. It seems
to me that the court a quo had
been influenced by the confusion in terminology against which Jansen
JA sounded a note of caution
in
Ngubane.
That much appears
from the way in which the court formulated its finding on this
aspect, namely – freely translated from
Afrikaans- that the
appellant, ‘appreciating the possibility of the consequences
nonetheless proceeded with his conduct,
reckless as to those
consequences’.
[17] Once the second
element of dolus eventualis is misunderstood as the equivalent of
recklessness in the sense of aggravated negligence,
a finding that
this element had been established on the facts of this case seems
inevitable. By all accounts the appellant was
clearly reckless in the
extreme. But, as Jansen JA explained, this is not what the second
element entails. The true enquiry under
this rubric is whether the
appellant took the consequences that he foresaw into the bargain;
whether it can be inferred that it
was immaterial to him whether
these consequences would flow from his actions. Conversely stated,
the principle is that if it can
reasonably be inferred that the
appellant may have thought that the possible collision he
subjectively foresaw would not actually
occur, the second element of
dolus eventualis would not have been established.”
[45] If this approach is
applied to the facts at hand the following emerges:
45.1 The 2
nd
appellant knew the day before the incident occurred that a firearm
had been acquired. Common sense would have informed him that
the
acquisition of such a weapon was either for purposes of self-defence
or for the use in some crime involving force;
45.2 The 2
nd
appellant knew that the firearm was handed to the 1
st
appellant on the same day that it was procured;
45.3 The 2
nd
appellant willingly accompanied, inter alia, the 1
st
appellant the following morning. Common sense would have informed him
that the 1
st
appellant may have been armed;
45.4 The 2
nd
appellant willingly participated in the events at the spares shop in
Parow, and later acknowledged his involvement in an attempted
robbery
when arraigned before court;
45.5 The 2
nd
appellant knew that the 1
st
appellant had discharged a
firearm at the Parow scene. Common sense would have informed him that
it was the same firearm that had
been fetched in the Strand and,
further, that it may be used again by the 1
st
appellant.
45.6 The 2
nd
appellant was in the robbers’ vehicle when it left Parow and
drove to Philippi, and then followed the white Nissan to Mfuleni.
Common sense would have informed him that his fellow passengers (and
most certainly the 1
st
appellant) were looking for a new
target to rob.
45.7 The 2
nd
appellant willingly alighted from the robbers’ bakkie with the
1
st
appellant in Mfuleni, in circumstances where there was
no compelling necessity to do so.
45.8 And
finally, the 2
nd
appellant actively associated himself
with the furtive intention of the 1
st
appellant by driving
the white Nissan away from the scene, helping dispose of the body and
taking active steps to get rid of the
vehicle and the incriminating
forensic evidence thereon.
[46] The only reasonable
conclusion to be drawn from these facts is that the 2
nd
appellant shared the foresight of the consequences of his conduct, as
one would have expected of any member of the general population
based
on common human experience. That conclusion having been arrived at,
as Brand JA put it -
“
(t)he true
enquiry…..is whether the [1
st
]
appellant took the consequences that he
foresaw into the bargain; whether it can be inferred that it was
immaterial to him whether these consequences would flow from his
actions.”
[47] In the light of what
had happened earlier in the day in Parow, the 2
nd
appellant could not be heard to say that the shooting in Mfuleni came
as a surprise to him. He willingly accompanied a man who
he knew was
armed, who had earlier discharged that firearm in the course of an
abortive robbery and who was obviously intent on
committing another
robbery. He took the potential consequences into the equation and ran
the risk inherent in the “
bargain”.
Self-evidently
it did not matter to the 2
nd
appellant whether it became
necessary to shoot at the robbery victim or not. In such
circumstances our law will hold that the 2
nd
appellant had
a common purpose with the 1
st
appellant to rob Mr Abdhi
and is further guilty of the murder of the deceased with
mens rea
in the form of
dolus eventualis.
[48] As far as the counts
of attempted murder are concerned it is apparent that when the 2
nd
appellant elected to run the risk of death ensuing in the event of
the firearm being discharged by the 1
st
appellant, common
sense would have told him that more than one shot may have had to be
discharged and that others may be hurt in
the course of the multiple
discharge of rounds from the firearm. He therefore also had the
requisite intention for attempted murder
on the basis of
dolus
eventualis.
Finally, as far as the alleged contraventions of the
Firearms Control Act are concerned, I am satisfied that the evidence
establishes
that inherent in the common purpose to rob was the
necessity for someone in the group to possess a firearm and
sufficient ammunition
to successfully complete the job.
[49] In the circumstances
the 2
nd
appellant was correctly convicted on all charges
save that the
mens rea
in respect of the murder and attempted
murder charges was in the form of
dolus eventualis
rather than
premeditated and with
dolus directus
as the trial court held.
SENTENCE
[50] Turning to sentence,
the trial court found that no substantial and compelling
circumstances as contemplated in
Sec 51
of the
Criminal Law Amendment
Act, 105 of 1997
, were established in respect of either of the
appellants in regard to the murder charge. As far as the 1
st
appellant is concerned, I agree. His conduct was indeed callous and
premeditated and he demonstrated no remorse for such a brutal
attack
on a man lawfully going about his daily business. Further, one has to
bear in mind that this incident took place in 2009
not long after the
tragic incidents of xenophobia which occurred throughout South Africa
in the preceding year or so. The alleged
exchanges which took place
between the robbers prior to their arrival in Philippi, and
immediately thereafter, suggest that they
regarded Somali traders as
“soft” targets who were vulnerable to attack by thugs
like the appellants and their cohorts
that day. In regard to the `1
st
appellant, life imprisonment is, in my view, the only appropriate
sentence on the count of murder.
[51] However, I am
persuaded that there are substantial and compelling circumstances for
not imposing the ultimate sentence on the
2
nd
appellant on
count 2. In saying so I have regard to the following factors.
[51.1] His
relative youthfulness at the time of the incident, coupled with the
probability that while not coerced he was influenced
by the 1
st
appellant (who was older than him) to do what he did;
[51.2] his
mens rea
which
has been found to be in the form of
dolus
eventualis;
[51.3] he
immediately told the police where the body of the victim was to be
found, thereby enabling the crime to be speedily investigated
and,
importantly, so that the deceased’s next-of-kin could bury him
properly;
[51.4] the
2
nd
appellant did not brandish the firearm on the day in question;
[51.5] he
spent three and a half years in custody awaiting the completion of
the trial.
In my view an
appropriate sentence for the 2
nd
appellant on the murder count would be 22 years imprisonment.
[52] Turning to the
sentences on the remaining counts I am unable to find that the trial
court misdirected itself in anyway. The
judgement on sentence is
detailed and well considered and I can see no basis for interference
or for drawing any distinction between
the two appellants’
respective sentences on counts one, three, four and five. However in
respect of the second appellant
I have regard to the cumulative
effect of the various sentences on a man of relative youth and as an
educated youngster, one who
may have the potential to assess the
wrongness of his ways and leave prison a reformed person. In order to
temper the cumulative
effect of the sentences then it seems to me
appropriate to order that the sentences on counts one, three, four
and five should
run concurrently with the sentence on count two.
ORDER OF THE COURT
[53] In the circumstances
the following order is made:
AD THE FIRST
APPELLANT
The appeal against
the sentences is dismissed.
AD THE SECOND
APPELLANT
A.
The appeal against the convictions is
dismissed and the convictions of the regional magistrate, Blue Downs,
are confirmed.
B.
The appeal against the sentences is
successful in respect of count 2 only and the sentence of life
imprisonment imposed by the regional
magistrate on that count is set
aside and replaced with the following–
“
22 jaar
gevangenisstraf ”
C.
The sentence imposed by the regional
magistrate is further varied by the addition of the following at the
conclusion thereof –
“
Die
vonnisse op beskuldigde 2 opgelê op klagtes 1, 3 , 4 en 5 sal ,
ingevolge art 280 van die Strafproseswet, 51 van 1977,
saam loop met
die vonnis van 22 jaar op klagte 2.”
D.
The appeal of the second appellant against
the sentences is otherwise dismissed.
E.
The sentence of 22 years imprisonment is
ante-dated to 15 March 2013.
GAMBLE, J
I agree.
BOQWANA, J
[1]
Initially a petition to this court for leave to
appeal prior to the 2013 amendment to the CPA (which operated
retrospectively
to 2010) was refused.In light of the fact that it
was common cause that the appellants now enjoyed the right to appeal
under
the amended section,it is not necessary to deal with this
issue further.
[2]
S v Goliath
1972(3)
SA 1 (A)
[3]
Prior to
Goliath
necessity was not available as a complete defence on a charge of
murder. See, in particular,
R v
Werner
1947 (2) SA 828
(AD) at 837 and
the other cases cited by Rumpff JA at 8 D
et
seq.
[4]
25 A-E
[5]
“
In the application of our criminal law, in those instances
where the
actus
of an accused person is to be
judged according to objective standards, the applicable principle is
that no accused person is
to be subjected to such higher demands as
may be reasonable, and reasonable in this regard means that which
can be expected of
the ordinary citizen due regard being had to the
circumstances at hand. It is generally accepted, by ethicists too,
that the
ordinary citizen’s own life is more important than
that of another. It is only those who are possessed of the quality
of
true heroism who will give up their lives for another. In the
event that the criminal law would thus stipulate that necessity is
never available as a defence on a charge of murder, it would
postulate that a person who kills another in circumstances of
necessity, regardless of the circumstances, is subjected to more
onerous considerations than the ordinary citizen. Such an exception
to the general rule applicable in our criminal law does not seem to
me to be reasonable” (Own free translation)
[6]
R v Hercules
1954(3)
SA 826 (AD)
[7]
R v Geere and others
1954
(3) SA 319
(AD)
[8]
R v Duma and Another
1945
AD 410
[9]
R v Shezi and Others
1948
(2) SA 119
(AD)
[10]
830H – 831B
[11]
R v Parry
1924
AD 401
at 406
[12]
JM Burchell
South
African Criminal Law and Procedure Vol 1 (3
rd
Ed) at 33
et seq.
[13]
S v Humphreys
2013(2)
SACR 1 (SCA)
[14]
S v Ngubane
1985(3)
SA 677 (A)