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[2016] ZASCA 115
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Malele v S; Ngobeni and Others v S (724/16) [2016] ZASCA 115 (13 September 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 723/16
In
the matters between:
MESHACK
MALELE
Applicant
and
THE
STATE
Respondent
Case
no: 724/16
SIPHO
SIDWELL NGOBENI
First
Applicant
BONGANI
KOLISI
Second
Applicant
LINDA
SOLOLO
Third
Applicant
and
THE
STATE
Respondent
Neutral
citation:
Malele
v S
(723/16)
and
Ngobeni
v S
(724/16)
[2016] ZASCA 115
(13 September 2016)
Coram:
Mpati
AP
Heard:
In
Chambers
Delivered:
13
September 2016
Summary:
Leave
to appeal – refusal of application by two judges of the SCA in
terms of
s 17(2)
of the
Superior Courts Act 10 of 2013
–
application to the President of the SCA in terms of
s 17(2)(
f
)
to refer the decision to the court for reconsideration and, if
necessary, variation – a grave injustice constitutes
exceptional
circumstances.
ORDER
On
appeal from:
North
Gauteng High Court, Pretoria (Bam J, sitting as court of appeal):
1.
Condonation
is granted to the applicants in both applications (case numbers
723/2016 and 724/2016 for the late filing of their applications.
2.
The
decision of this court dated 3 May 2016 dismissing the applicants’
application for special leave to appeal against their
conviction and
sentence is referred to the court for reconsideration and, if
necessary, variation, in terms of
s 17(2)(
f
)
of the
Superior Courts’ Act 10 of 2013
.
3.
The
applicants are directed to lodge with the registrar of this court six
(6) copies of their respective applications in case numbers
723/2016
and 724/2016 in terms of
s 17(2)(
f
)
of the
Superior Courts’ Act 10 of 2013
, as well as six (6)
copies of their initial application (case no. 232/16) to this court
for special leave to appeal, within one
month of the date of this
order and thereafter to comply with the rules of this court relating
to the conduct of appeals.
JUDGMENT
Mpati
AP
[
1]
This judgment covers two applications lodged in terms of
s 17(2)(
f
)
of the Superior Courts Act 10 of 2013 (the Act). Mr Meshack Malele,
the applicant in case no 723/16, was the first accused in
a criminal
trial in the Gauteng Division of the High Court, Pretoria (Bam J), in
which he, together with the three applicants in
case no 724/16 (the
second application) and five others, faced a charge of murder. The
applicants in the second application were
accused numbers 5, 7 and 8
respectively. I shall refer to all the applicants in the two
applications collectively as ‘the
applicants’ and
individually as they were referred to at the trial. The applicants
and four of their co-accused were all
convicted as charged on 25
August 2015 and each sentenced, on 11 November 2015, to 15 years’
imprisonment. Accused 9 was
found not guilty and discharged. The
applicants’ application for leave to appeal was dismissed on 11
December 2015.
[2]
On 3 May 2016 their joint application for special leave to appeal was
dismissed by two members of this court. They have now
applied to the
President of this court, in two separate applications under the above
case numbers, for a referral of the order
dismissing their
application for special leave to appeal to the court for
reconsideration and, if necessary, variation (s17(2)(
f
)
of the Act). They also seek condonation for the late filing of their
applications.
[3]
In its judgment the trial court set out the summary of the
substantial facts relating to the murder charge as follows:
‘
[I]t
is alleged that on [26 February 2013] the deceased [Silvesta Jossefa
Marcia], a taxi driver, was confronted by accused 1 and
2 concerning
a traffic rule violation, in that he was obstructing other traffic.
An argument ensued during which the deceased’s
driver’s
licence was taken and his vehicle attached. Back-up assistance of
about 6 other policemen was obtained. The deceased
was handcuffed to
a police bakkie whilst his body remained outside. The police vehicle
then drove off dragging the deceased behind
it, with another police
vehicle following. Between the time of the deceased being dragged and
the time he was booked in at the
Daveyton Police Station, the
deceased sustained injuries to which he succumbed whilst in custody.
It was further alleged that,
at all relevant times the accused acted
with a common purpose.’
[4]
The trial court recorded the ‘final diagnostic analyses on the
cause of death’ to include the following:
‘
(i)
Back lap dissection on second post mortem showed extensive soft
tissue injuries which in a dark-skinned person would
not be apparent.
(ii)
The scrotal evasion technique from inside the pubes showed injuries
to the testes which were not visible
from the outside examination.
(iii)
The toxicology results done by Dr G Perumal states as follows:
Cerebral oedema and generalised
congestion of the brain and lungs.
[1]
The
pathologist, Dr Solly Skhosana, concluded that the cause of the
deceased’s death was ‘extensive soft tissue injuries
and
hypoxia’.
[2]
[5]
In relation to the time and place where the injuries were sustained
by the deceased the trial court said (at para 46):
‘
Apart
from the soft tissue injuries the deceased could have sustained
during the struggle, [ie during the arrest] it is clear that
no other
injury was directly inflicted by the policemen [accused 1 and 2].
’
And
further:
‘
Accordingly,
it has to be inferred that the majority of the injuries could only
have been sustained during the dragging episode
and later in the
cells. It necessarily follows that the fact that blood was later
noticed in the bakkie means that the deceased
was probably bleeding
from an injury sustained during the dragging episode
.’
Having
considered the evidence before it the court found that ‘accused
2 to 8 assaulted the deceased in the cell, thereby
seriously injuring
him’. It also found that ‘[t]here can be no doubt that
they foresaw that the injuries may result
in his death’.
[3]
[6]
There appears to be no doubt that the deceased was assaulted after he
had been placed in the police cell, where it was later
discovered
that he had died. However, the single witness to the assault, Warrant
Officer Ngamlana, testified that when the deceased
fell down inside
the cell he was surrounded by the policemen (accused 2 to 8) and that
he could not see what was happening, but
heard what sounded like open
hand claps.
[4]
It is therefore
not clear from the judgment whether only one or more of the policemen
inside the cell assaulted the deceased. The
basis for the finding
that ‘accused 2 to 8 assaulted the deceased in the cell’
is, therefore, not clear from the judgment
of the trial court.
[7]
The trial court, however, made the following finding in respect of
the dragging incident:
‘
There
can be no doubt that all the accused foresaw that in being dragged
behind the bakkie the deceased would sustain serious injuries
which
could result in death, yet they persisted in their conduct of not
stopping, or preventing it to continue, thereby clearly
reconciling
themselves with the event and the eventual result.’
[5]
That
the trial court considered the failure of the applicants and others
to intervene when the deceased was dragged behind the police
vehicle
(bakkie) to be an act of association manifesting their showing of a
common purpose with the driver of the bakkie, is clear
from the
following extract from its judgment, with reference to accused 1:
‘
It
is clear that accused 1, on his own evidence, dismally failed in this
regard. In considering his mental state of mind, concerning
mens
rea
,
that he foresaw that the injuries sustained by the deceased, before
and during the dragging episode, could result in his death,
and
reconciled himself with that event, his conduct, in the
circumstances, in not attending to the deceased in the cells and not
immediately arranging for the necessary medical attention, is
confirmatory of his intention in the form of
dolus
eventualis
in
respect of the death of the deceased.’
[8]
I have grave doubts, with respect, about the appropriateness of the
trial court’s application of the doctrine of common
purpose in
the case before it. In my view a correct application of the doctrine
as enunciated in
S
v Mgedezi & others
(415/1987)
[1988] ZASCA 135
;
1989 (1) SA 687
(A) at 705I – 706B
[6]
and affirmed in
S
v Thebus & another
(CCT
36/02)
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) might well yield a
different result than a murder conviction. The trial court accepted,
for example, that accused 2 and 8
attempted to assist the deceased
when the bakkie to which he had been attached drove off and dragged
him, by lifting his legs off
the ground, but then let go of him when
the bakkie accelerated. Yet, the court found that the two officers’
initial attempt
to assist the deceased ‘did not remedy their
situation or justify their conduct of not doing anything else.’
Their
attempt ‘was of no avail to them and cannot absolved
them’, the court said (at para 42).
[9]
I also question the trial court’s conclusion that the
applicants’ form of intent (
mens
rea
)
was
dolus
eventualis
.
In my view, another court might find differently.
[10]
It is now convenient to mention that in a separate application to
this court for leave to appeal, one of the applicant’s
erstwhile co-accused, Mr Bonginkosi Mdluli, who was accused 4 before
the trial court, was granted leave on 24 May 2016 to appeal
to the
Full Court of the Gauteng Division against his conviction and the
sentence imposed on him. The applicants rely heavily on
this fact and
have advanced the submission in their applications, that the granting
of leave to their former co-accused ‘on
the same facts’
is a compelling reason for their appeals also to be heard.
[11]
In my view, the mere fact that the applicants’ former
co-accused’s application for leave to appeal was successful
does not necessarily mean that the applicants should, without more,
also be granted leave to appeal. The judgment of the trial
court
reveals that when he saw the deceased being dragged behind the bakkie
accused 4 jumped into another police vehicle and followed,
signalling, by flashing the lights of his vehicle, with the aim of
catching the attention of the driver of the bakkie. It appears
that
his efforts were successful because the bakkie indeed stopped. The
deceased was then placed in the back of the bakkie. Notwithstanding
these facts, however, the trial court did not differentiate between
accused 4 and the other accused when it made the finding that
all the
accused persisted in their conduct of not stopping or preventing the
deceased from being dragged behind the bakkie. The
position of
accused 4 was, therefore, different.
[12]
But it is not necessary to say more on this aspect. In my view, and
considering what has been said above, a grave injustice
may otherwise
result were I to refuse to refer the decision of 3 May 2016
dismissing the applicants’ application for special
leave to
appeal to the court for reconsideration and, if necessary, variation.
That in itself constitutes exceptional circumstances
enabling me,
mero
motu
,
to refer the decision of 3 May 2016 to the court for reconsideration.
[13]
In the result, I make the following order:
1.
Condonation
is granted to the applicants in both applications (case numbers
723/2016 and 724/2016 for the late filing of their applications.
2.
The
decision of this court dated 3 May 2016 dismissing the applicants’
application for special leave to appeal against their
conviction and
sentence is referred to the court for reconsideration and, if
necessary, variation, in terms of s 17(2)(
f
)
of the
Superior Courts’ Act 10 of 2013
.
3.
The
applicants are directed to lodge with the registrar of this court six
(6) copies of their respective applications in case numbers
723/2016
and 724/2016 in terms of
s 17(2)(
f
)
of the
Superior Courts’ Act 10 of 2013
, as well as six (6)
copies of their initial application (case no. 232/16) to this court
for special leave to appeal, within one
month of the date of this
order and thereafter to comply with the rules of this court,
particularly
rule 7
, relating to the conduct of appeals.
__________________________
L MPATI
ACTING
PRESIDENT
Appearances
in
Malele
v S
:
For
the Appellicant:
Messrs Krauses & Ngobeni
Springs
For the
Respondents:
C Mnisi
Director
of Public Prosecutions, Pretoria
Appearances
in
Ngobeni v S
:
For
the Appellant:
messrs Van Wyngaard
Benoni
For the
Respondents:
C Mnisi
Director of Public Prosecutions,
Pretoria
[1]
Paragraph
5.7 of the judgment.
[2]
Paragraph
5.7 of the judgment.
[3]
Paragraph
62 of the judgment.
[4]
Paragraph
5.5 of the judgment.
[5]
Paragraph
47 of the judgment.
[6]
See
also
S
v Jama & others
1989
(3) SA 427
(A) at 436D-H.