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[2015] ZASCA 125
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Nkosi v The State (20727/14) [2015] ZASCA 125; 2016 (1) SACR 301 (SCA) (22 September 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20727/14
DATE:
22 SEPTEMBER 2015
REPORTABLE
In the matter
between:
THABO MACBETH
NKOSI
...........................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Neutral citation:
Nkosi v The State (20727/14)
[2015] ZASCA 125
(22 September
2015)
Coram: Mpati P,
Shongwe and Majiedt JJA
Heard: 9
SEPTEMBER 2015
Delivered: 22
SEPTEMBER 2015
Summary: Criminal
law – Robbery perpetrated by a gang of which
appellant a
member – fellow robber shot and lawfully killed in self-defence
by
victim of robbery
– appellant correctly convicted of murder in the
circumstances.
ORDER
On appeal from:
North Gauteng High Court, Pretoria (Molopa J sitting as court of
first instance):
The appeal is
dismissed.
JUDGMENT
Majiedt JA (Mpati
P and Shongwe JA concurring):
[1] ‘Fair is
foul and foul is fair’ said the three witches in the opening
scene of Shakespeare’s Macbeth. In the
course of an armed
robbery gone horribly wrong for the robbers, one of them, Mr Bongani
Jabulani Skhosana, was fatally wounded
by the robbery victim, Mr
Dennis Sikhumbuso Ngobese, who lawfully shot Mr Skhosana in
self-defence. The question that arises is
whether the appellant, Mr
Thabo Macbeth Nkosi, who was part of the gang of armed robbers and
who was accused number two at the
trial, was correctly held
criminally liable by the court below, (North Gauteng High Court,
Pretoria, Molopa J sitting as court
of first instance), for Mr
Skhosana’s death. What is fair and what is foul in these
circumstances with regard to the appellant’s
culpability for
his fellow-robber’s death at the hands of the victim, is the
vexed question that confronts us.
[2] The facts are
largely common cause or uncontroverted. Gleaned from Mr Ngobese’s
testimony, they are as follows. Mr Ngobese
owned a coal yard in
Wattville, Benoni. When he was about to close his business at around
6pm on that fateful day, a vehicle with
five occupants arrived. Two
of the occupants entered his office. Mr Ngobese had been busy cashing
up the day’s takings in
his office and he intimated to the
robbers, who demanded money, that they should take the cash lying on
his office desk. His suggestion
to the robbers that they search him
was disdainfully brushed aside, with dire consequences to the
robbers. On his own accord Mr
Ngobese removed his cellphones and his
wristwatch and placed them on the table. The deceased entered the
office after his two fellow
robbers. Like them, he was in possession
of a firearm which he waved around, issuing threats and eventually
firing a shot which
hit one of the coal yard employees, Mr Dennis
Mabaso, in the elbow. Mr Ngobese described the deceased’s
appearance as wild
and agitated. Mr Ngobese was lying down, as he had
been instructed, when a struggle ensued between him and the deceased.
In the
process he grabbed the deceased’s wrist and a shot went
off from the deceased’s firearm and passed Mr Ngobese’s
left side. Mr Ngobese was able to draw his firearm and shot the
deceased twice in his chest. Thereafter he shot back at the three
robbers who were firing at him. It appears on the evidence to have
been a wild shootout in that small office. In the end, the deceased
was fatally wounded, the erstwhile accused number one was shot in the
pelvis and Mr Ngobese sustained a gunshot wound in the leg.
The
appellant was convicted on one count of murder, two counts of robbery
with aggravating circumstances and one count each for
the unlawful
possession of a firearm and ammunition.
[3] The only issue
before us is whether the trial court had correctly convicted the
appellant of the murder of his fellow robber.
The appeal is with
leave of this court. The broad thrust of the appellant’s
contentions is that the deceased had embarked
on a ‘frolic of
his own’ which caused his own death and that the State had
failed to prove that the appellant had the
requisite intent for
murder. The conviction appears to have been based on dolus
eventualis, an aspect which becomes apparent only
in the judgment on
sentence. Regrettably the learned judge said nothing about this
central issue in the judgment on the merits,
save for the finding
that ‘the guilt of all three accused have been proved [on all
five counts]’ and that ‘[t]he
accused participated/acted
in pursuance of a common purpose’. The rest of the evidence led
at the trial was broadly consonant
with the version advanced by Mr
Ngobese. It is against this factual backdrop that the narrow,
circumscribed issue must be decided.
The appellant and his co-accused
all denied having been present at the scene and relied on alibi
defences which were rejected by
the trial court.
[4] Counsel for the
appellant placed strong reliance on S v Molimi & another (249/05)
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA). In Molimi, however, the facts
were materially different. In the course of an armed robbery at a
shopping mall one of the
robbers took a young man hostage inside a
store. A bystander fired at the robber but struck the hostage
instead, fatally wounding
him. The robbery itself had been completed,
albeit not without complications. One of the charges against the
accused was in respect
of the murder of the hostage. As is the case
here, the primary contention on behalf of the defence was that the
death of the hostage
was not foreseeably part of the common purpose
to perpetrate the armed robbery. In upholding this contention,
Cachalia AJA made
the following findings at paragraphs 35 and 36:
‘. . . Once
all the participants in the common purpose foresaw the possibility
that anybody in the immediate vicinity of the
scene could be killed
by cross-fire, whether from a law-enforcement official or a private
citizen, which in the circumstances of
this case they must have done,
dolus eventualis was proved.
[36] But the taking
of the hostage by accused 1 falls into a different category. It is
probable that at the time he took the hostage,
his co-robbers had
escaped through the exit of the shopping complex. He was therefore on
his own when he took the hostage while
seeking refuge from the man
who was pursuing him. By taking a hostage he had, in my view,
embarked on a frolic of his own. These
actions could hardly have been
foreseeable by the other participants in the common purpose. To hold
otherwise, as the court a quo
did, would render the concept of
foreseeability so dangerously elastic as to deprive it of any
utility. To put it another way,
the common purpose doctrine does not
require each participant to know or foresee every detail of the way
in which the unlawful
result is brought about. But neither does it
require each participant to anticipate every unlawful act in which
each of the participants
may conceivably engage in pursuit of the
objectives of the common purpose.’ (My emphasis.)
[5] Enquiries like
these are always fact specific. It is readily apparent that the
factual scenario in Molimi is very far removed
from that in the
present instance. An important consideration is the fact that all
three of the robbers who had entered the office
(including the
appellant) were armed with loaded firearms. In my view the appellant
and his cohorts were clearly cognisant of the
reasonable likelihood
that they may have to use their firearms. And it was equally
reasonably foreseeable that one or more of their
victims may be armed
and would use those arms. It is trite that every case must be decided
on its own facts. The law reports are
replete with cases where
casualties ensue in the course of armed robberies. As Professor
Snyman correctly points out, our courts
have consistently held
accused persons who engage in a wild shootout with others, in the
course of an armed robbery, criminally
liable on the basis of dolus
eventualis for the unexpected deaths that may result (C R Snyman,
Criminal Law 5ed (2008) at 201).
[6] On the common
cause and proved facts, the appellant and his fellow robbers
reasonably foresaw the likelihood of resistance and
a shootout, hence
the need to arm themselves with loaded firearms. The shootout between
Mr Ngobese and the deceased occurred in
the same room where the
robbery was being perpetrated and in the course thereof. I am unable
to agree with the submission that
it must count in the appellant’s
favour that the robbers accosted Mr Ngobese while under the
impression that he was unarmed.
They foolishly ignored to their peril
his suggestion that they search him. And they foresaw the very real
possibility of there
being other employees and customers present at
the coal yard, even though it was almost closing time. The facts are
clearly distinguishable
from those in Molimi.
[7] I am mindful of
the fact that intent is a subjective state of mind and that ‘the
several thought processes attributed
to an accused must be
established beyond any reasonable doubt, having due regard to the
particular circumstances of the case’
(per Olivier JA in S v
Lungile & another (493/98)
[1999] ZASCA 96
;
1999 (2) SACR 597
(SCA) para 16). Equally important is to be cognisant that ‘the
question whether an accused in fact foresaw a particular consequence
of his acts can only be answered by way of deductive reasoning. . .
[b]ecause such reasoning can be misleading, one must be cautious’
(see S v Lungile and another para 17). The facts in Lungile are more
comparable with those in the present instance. In the course
of a
robbery at a store, a policeman arrived on the scene and exchanged
gunfire with one of the robbers (the second appellant)
resulting,
amongst others, in the death of one of the store’s employees.
In upholding the conviction of the other robber
(the first appellant)
on murder and, after setting out the general principles quoted above,
Olivier JA held that the inference
was inescapable that the first
appellant did foresee the possibility of the death of the employee
since he knew that at least two
of his co-conspirators were armed
with firearms, that the store was located in the main street of Port
Elizabeth opposite a police
station and that the robbery would be
committed in broad daylight. The following dictum in Lungile (para
17) is apposite:
‘Generally
speaking, the fact that the first appellant had prior to the robbery
made common cause with his co-robbers to execute
the crime,
well-knowing that at least two of them were armed, would set in
motion a logical inferential process leading up to a
finding that he
did in fact foresee the possibility of a killing during the robbery
and that he was reckless as regards that result.’
(Compare
also: R v Bergstedt
1955 (4) SA 186
(A) and S v Nkombani &
another
1963 (4) SA 877
(A) at 893 F – H.)
[8] Some reliance
was placed on S v Dube & others
2010 (1) SACR 65
(KZP). That case
does not assist the appellant, since its facts differ materially from
those in this case. There the perpetrators
were unarmed and, while
drilling a hole in the vault after having gained entry into a bank,
they were surprised by the police who
surrounded the bank. When they
tried to escape one of them was shot and fatally wounded by one of
the policemen. The full court
held that a reasonable inference can be
drawn that the appellants never subjectively foresaw that they would
be apprehended because
of the precautionary measures they had taken
to avoid detection and apprehension. This inference is supported by
the absence of
firearms on them, ie the appellants ‘did not
reconcile themselves to a “dangerous resistance” to
arrest with
all its attendant consequences’ (S v Dube para 16).
[9] Lastly, there is
S v Mkhwanazi & others 1988(4) SA 30 (W). Counsel for the
appellant relied heavily on this case for the
contention that the
appellant had not acted unlawfully in the killing of the deceased,
since the death of the deceased resulted
from the lawful action of
the complainant, Mr Ngobese, who had shot the deceased in
self-defence. In my view Mkhwanazi has been
wrongly decided. That
case in any event does not support the contention. There is in fact
authority to the contrary from this court.
In Mkhwanazi a
neighbouring shopkeeper went to the assistance of a staff member of
the Troyeville Post Office in Johannesburg which
was being robbed by
three men, one of whom had a firearm. On encountering the fleeing
robbers a shootout ensued between them and
the shopkeeper, who also
had a firearm. One of the robbers was mortally wounded by a shot
fired by the shopkeeper. The court held
that there was no evidence to
show that the accused, in pursuing their unlawful purpose (the armed
robbery), foresaw and were indifferent
to the possibility that one of
their member’s might be killed, and accordingly the subjective
criterion of foreseeability
had not been fulfilled. Van Schalkwyk J
discharged the accused at the end of the State’s case. The
learned judge also held
that the prosecution’s proposition that
each of the gang members should be guilty of murder in the event of
one of their
member’s being killed by a third party, in defence
of life or property, was untenable and found no support in the
authorities.
Lastly, he held that the State had failed to prove an
actus reus, since the proximate cause of the death of the deceased
robber
was the lawful conduct of the shopkeeper.
[10] I have already
dealt with the foreseeability element above and nothing much need
further be said about it. It would suffice
to state that Molimi and
other authorities in this court are contrary to the finding in
Mkhwanazi. And, secondly, as pointed out
above, Professor Snyman
supports this latter approach (at 201). In the course of that
discussion, Professor Snyman refers to the
following hypothesis:
‘[A]ssume that
X1, X2 and X3 decide to commit an armed robbery. They are confronted
by the police. A wild shootout between
the two groups breaks out. X1
as well as a police official are killed in the shootout. Ballistic
tests reveal the surprising fact
that X1 was not killed by a bullet
fired by a police official, but by a bullet fired by X2, and that the
police official was not
killed by one of the robbers, but by a bullet
fired by another police official. Can the three robbers be convicted
of both murders?
It would seem that
the courts answer this question in the affirmative, for the following
reasons: X1, X2 and X3 foresaw the possibility
that people might be
killed in the course of the robbery, and the inference may also be
drawn that, by persisting in their plan
of action despite this
foresight, they reconciled themselves to this possibility. It is
submitted that the courts’ handling
of this type of situation
is correct.’
[11] The last two
findings in Mkhwanazi, as mentioned above, are also contrary to
authorities in this court. In S v Nkombani and
another
1963 (4) SA
877
(A) a would-be robber was killed by a gunshot fired by one of his
fellow gang members at the intended victim of an attempted hold-up.
The majority confirmed the conviction of not only the gang member who
had fired the fatal shot, (the first appellant) but also
that of the
co-conspirator who had supplied one of the guns and who had not even
been on the scene of the attempted robbery and
shooting (the second
appellant). Holmes JA explained the reason for the finding in respect
of the second appellant as follows at
896 A-B:
‘. . . the
State proved beyond reasonable doubt that he foresaw the possibility
of a shooting affray in which one of the henchmen
might be hit by a
bullet fired by the other. In other words, as far as he was
concerned, the shooting of the deceased can be regarded
as an
envisaged incident or episode in the crime to which he was a party.’
A different scenario
but with the same outcome occurred in S v Nhlapo & another
1981
(2) SA 744
(A), a case which Van Schalkwyk J sought to distinguish
(wrongly so in my view) in Mkhwanazi. In the course of a shootout
between
three armed security guards and three armed robbers at a
Makro Store, one of the security guards was shot and killed. On
appeal
this court dealt with the matter on the basis that the
deceased might have been killed by a shot fired by one of the other
security
guards. In confirming the trial court’s conviction of
the robbers for the murder of the deceased, van Heerden JA reasoned
as follows:
‘. . .they
also foresaw the possibility of one guard being killed by a shot
fired in the direction of the robbers by another
guard or, for that
matter, a person such as a staff member of Makro witnessing the
attack. In sum, the only possible inference,
in the absence of any
negativing explanation by the appellants, is that they planned and
executed the robbery with dolus indeterminatus
in the sense that they
foresaw the possibility that anybody involved in the robbers’
attack, or in the immediate vicinity
of the scene, could be killed by
cross-fire. Compare the remarks of Rumpff JA in S v Nkombani and
Another
1963 (4) SA 877
(A) at 892A. Or, to adopt the words of Holmes
JA in the same case (at 896), the shooting of one guard by another
was, as far as
the robbers were concerned, “an envisaged
incident or episode” in the crime planned by them.’
[12] I fail to
understand how Nhlapo is distinguishable from the factual scenario in
Mkhwanazi, as Van Schalkwyk J found. In particular,
I respectfully
disagree with the learned judge’s remarks at 34D-E:
‘The nature of
the gun battle in S v Nhlapo was such that it was impossible to
attribute any particular cause to a particular
result. In short, in
the matter of causation, the death of the deceased was the result of
the gun battle and those who were responsible
for having instigated
the gun battle were responsible also for his death.’(My
emphasis.)
Lastly there is S v
Lungile & another referred to above. In rejecting the contentions
on behalf of the second appellant that
he cannot be held liable for
the shop employee’s death because the policeman’s actions
(in firing the lethal shot)
was not unlawful, alternatively that the
policeman’s action was a novus actus interveniens,
unforeseeable by the second appellant,
Olivier JA held (at paragraph
27) that factually both the second appellant and the policeman had
caused the deceased’s death.
And, the learned judge held (at
paragraph 28) that the second appellant could not rely on the
lawfulness of the policeman’s
acts – the latter was
acting out of necessity, justified in law, whereas the second
appellant was acting unlawfully in the
execution of an armed robbery.
Olivier JA said:
‘. . . the
death of the deceased was brought about by an unlawful act or acts of
the second appellant, viz the implementation
of the robbery the
physical assault on the deceased and the participation in the gun
battle.’ (paragraph 29.)
The learned Judge
also rejected the novus actus interveniens argument.
[13] In conclusion
and to summarise: on the facts of this case the appellant was well
aware that the fact of him and his fellow
robbers being armed with
loaded firearms may result in a shootout or, as it was referred to in
Bergstedt and in Dube, that they
may encounter ‘dangerous
resistance’. He reasonably foresaw subjectively that, in the
course of encountering such ‘dangerous
resistance’, the
firearms may be used with possible fatal consequences. He was thus
correctly convicted of murder and the
appeal must fail. I can do no
better than to end off with the inimitable eloquence of Holmes JA in
S v Nkombani above at 896E-F:
‘This
conclusion, arrived at by reference to reason and the facts, is also
consistent with social necessity, that wicked minds
which devise and
plan such evil deeds may know the risks they run in the matter of
forfeiting their own lives.’
[14] I issue the
following order:
The appeal is
dismissed.
S A Majiedt
Judge of Appeal
Appearances
For the
Appellant: M van Wyngaard
Instructed by:
Saayman Attorneys, Johannesburg
c/o Phatshoane
Henney Attorneys, Bloemfontein
For Respondent: E
Sihlangu
Instructed by:
Director of Public Prosecutions, Pretoria
Director of
Public Prosecutions, Bloemfontein