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[2015] ZASCA 136
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Nube v The State (091/15) [2015] ZASCA 136 (30 September 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 091/15
Not
Reportable
In
the matter between:
MADODA
DOPLA
NUBE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Nube
v The State
(091/15)
[2015] ZASCA 136
(30 September 2015)
Coram:
Bosielo,
Pillay and Dambuza JJA, Van der Merwe and Gorven AJJA
Heard:
26 August 2015
Delivered:
30 September 2015
Summary:
Appeal
against convictions and the sentences imposed for robbery with
aggravating circumstances, attempted murder, six counts of
murder,
unlawful possession of firearm and ammunition – conspiracy and
common purpose – the appellant a member of a
group which
planned to commit a heist – the appellant attending various
meetings where the plan, time and method of executing
the heist
discussed, refined and agreed upon – the appellant claiming to
have withdrawn from the conspiracy to commit the
heist –
confirmation of court a quo’s finding that the appellant’s
conduct did not amount to effective dissociation
from the conspiracy
and common purpose to commit the heist.
ORDER
On
appeal from
:
Eastern Cape Local Division, Port Elizabeth (Goosen J sitting as a
court of first instance).
The
appeal is dismissed.
JUDGMENT
Bosielo
JA (Pillay and Dambuza JJA, Van der Merwe and Govern AJJA
concurring):
[1]
The appellant and six others stood trial before Goosen J in the
Eastern Cape Local Division, Port Elizabeth charged with a number
of
offences being robbery with aggravating circumstances as defined in s
1(
b
) of the Criminal Procedure Act 51 of 1977 (CPA), and read
with the provisions of s 51(1) and Part 1 of Schedule 2 of the
Criminal
Law Amendment Act 105 of 1977, statutory conspiracy with,
or, procurement of other persons to commit robbery with aggravating
circumstances
(as defined in s 1(1)(
b
) of the CPA) (in
contravention of s 18 of the Riotous Assemblies Act 17 of 1956), the
statutory unlawful possession of firearms,
the statutory unlawful
possession of a fully automatic firearm, the statutory unlawful
possession of ammunition, three counts of
attempted murder, six
counts of murder and three counts of theft of motor vehicles which
were used in the commission of an attempted
heist of an armoured
vehicle carrying liquid platinum.
[2]
At the end of the trial, the appellant was found guilty of robbery
with aggravating circumstances, one count of attempted murder,
and
six counts of murder. He was sentenced to an effective term of 23
years’ imprisonment. The appellant is appealing against
his
convictions and sentences with the leave of the court below.
[3]
The trial court delivered a comprehensive and detailed judgment
dealing with all the evidence which was led at the trial. It
will
serve no purpose to repeat that exercise. This is more so because to
a large extent the background facts are common cause.
I will only
refer to those parts of the evidence which the appellant disputed and
those which illustrate the role which he played
from the beginning of
the conspiracy until the day when the heist was foiled by the police,
on 8 November 2011.
[4]
The following facts are common cause: the appellant was a member of a
syndicate which had planned to rob Brink Security of liquid
platinum
whilst it was in transit; to facilitate their planned heist they had
various meetings between August and November 2011
with one Constable
Mudau (Mudau), who had been employed by Brink Security as a driver
and who, unbeknown to the syndicate, was
an undercover agent under
the supervision of Colonel Mayana (Mayana); this undercover operation
was authorised by the Director
of Public Prosecutions in terms of s
252A of the CPA; all the meetings between Mudau and members of the
syndicate were video-taped
and recorded; the appellant attended all
the meetings between Mudau and members of the syndicate where the
plan of the robbery
was discussed, refined and finally adopted save
for the brief period in October 2011 when he was detained in prison.
[5]
It is furthermore common cause that: the appellant was not only an
integral part of the group planning the heist with Mudau
but featured
prominently as the brain trust behind it; he was not supposed to
participate actively in the actual heist as his role
was to be on the
freeway to do the reconnaissance of the Brink’s vehicle from
the airport and report its progress to the
members of the syndicate
who were going to execute the heist; on 8 November 2011, the other
members of the syndicate dressed as
road-workers took up their
respective positions as planned at the railway crossing at Stephenson
Road, Deal Party ready to execute
the heist; the planned heist was
foiled by the members of the National Intervention Unit (NIU) who had
been deployed at the crime
scene with the specific purpose to foil
the heist; some members of the syndicate made off with drums which
they thought contained
liquid platinum; others were fatally wounded
in the wild shoot-out which ensued with two civilians shot and killed
in the cross-fire.
[7]
Although the appellant admitted to being a member of the syndicate
and a party to the conspiracy to rob the Brink’s vehicle
of
liquid platinum, he raised as his main defence that he had
effectively withdrawn and thus dissociated himself from the joint
criminal enterprise on 1 November 2011. His stated reason for
withdrawing is that it was mentioned for the first time at this
meeting that a bomb was going to be used during the heist. He
conveyed his intention to withdraw from the planned heist to only
one
member of the syndicate. Notably, he attended a meeting between Mudau
and the syndicate on 7 November 2011, where the plan
to execute the
planned heist was finalised. Importantly, it is at this meeting that
it was decided to execute the heist the next
day, 8 November 2011.
[8]
In amplifying his defence of dissociation, the appellant denied that
he was ever at or near the crime scene on 8 November 2011.
Essentially, he raised an alibi to the effect that at the time he had
taken his friend to a place where he wanted to buy motor
vehicle
parts and further that later in the day he went to see his child at
Ferguson Road in New Brighton where he spoke to a traffic
officer
called Mbulelo Ngwenze (Ngwenze). He testified that as evidence of
his withdrawal he had reported the planned heist to
a police officer,
Derick Roderick Grootboom (Grootboom) on 7 November 2011. The
appellant called both Grootboom and Ngwenze as
his witnesses.
[9]
Grootboom testified that at around midday on 7 November 2011, he
received a call from a private number from a person who did
not
identify himself. However, because he knew the appellant, he could
make out from the caller’s voice that it was him.
Although he
could not remember exactly what the appellant said, he testified that
it was to the general effect that ‘there
would be an incident
going down in Deal Party tomorrow’ and ‘I will discuss
details again with you’. In cross-examination,
he testified
that the appellant never furnished him with any further details. Of
importance, he testified that on the morning of
8 November 2011, he
went to Stephenson Road, Deal Party where the heist was to take place
with some police officers. Whilst there,
the appellant called him and
indicated that he was on the freeway and that the Brink’s truck
had just passed him. When the
appellant’s counsel suggested to
him that he might have misunderstood the appellant as what the
appellant said to him was
that the Brink vehicle, and not the
appellant was on the freeway, Grootboom responded emphatically that
‘from the conversation
I could derive that both were on the
freeway because he indicated that the vehicle is passing him now’.
[10]
Ngwenze testified that he knew the appellant very well. He testified,
in short, that he heard over the radio, whilst doing
patrol duties
that morning that there was a shoot-out between police and robbers.
He then went to the scene at approximately 10
o’clock and the
heist was over. Later that day after he had left the crime scene, he
saw the appellant in his vehicle holding
his baby on Ferguson Road in
New Brighton. He then stopped and told the appellant about what he
had seen at the robbery scene.
He estimated that it could have been
around 12h30 when he spoke to the appellant.
[11]
The trial judge dismissed the appellant’s defence of
dissociation. He found that the appellant’s version that he
had
told accused 5 after the meeting of 1 November 2011 that he was
withdrawing from the conspiracy because a bomb was going to
be used
was contradicted by the transcript of the recorded meetings which
shows clearly that the use of a bomb had already been
raised at an
earlier meeting on 13 September 2011, where the appellant was
present. Importantly, the trial judge found the appellant’s
subsequent behaviour after the meeting of 1 November 2011, to be
inconsistent with his claim that he had effectively withdrawn
from
the conspiracy to commit the heist. Hence the conviction.
[12]
Stripped to its bare essentials, the argument before us was confined
to the crisp question whether the trial court erred in
finding that
the appellant’s action, viewed holistically, did not amount to
dissociation from the planned heist.
[13]
Counsel for the appellant agued in the main that the trial court
confused conspiracy by members of the syndicate to commit
the heist,
with the eventual commission of the heist based on common purpose.
However, she conceded, correctly in my view, that
because members of
the syndicate including the appellant, had agreed on the commission
of the offence, the statutory crime of conspiracy
to commit robbery
had been proved.
[14]
Regarding common purpose in committing the heist with his
co-conspirators, she submitted that the appellant should not have
been convicted as it was common cause that the appellant was not at
the crime scene during the commission of offence.
[15]
On the other hand, the respondent’s counsel submitted that the
conviction of the appellant by the trial court is fully
supported by
the proven evidence. He submitted that it is clear from the evidence
of Mudau, the undercover agent, which is fully
corroborated by the
transcripts of the meetings held between Mudau and various members of
the syndicate, including the appellant
that since his involvement in
the planning of the heist in early August 2011, the appellant was not
only an integral part of the
plan to rob Brink’s Security of
liquid platinum, but he was in fact pivotal to the entire scheme. He
argued further that
the appellant’s subsequent conduct, after
the meeting of 1 November 2011, of attending another meeting of the
syndicate on
7 November 2011 where the plan to execute the heist was
finalised, is subversive of his defence of dissociation. In
conclusion
he contended that the appellant’s presence on the
freeway where the Brink’s Security vehicle was going to travel
from
the airport as per the agreement with the syndicate is further
proof of his continued association with the syndicate’s planned
heist.
[16]
Regarding the telephone call made by the appellant to Grootboom on
the day before the heist, the respondent’s counsel
submitted
that the trial court was correct in finding that it was not
sufficient to support the defence of dissociation as the
appellant
said too little about the planned heist to be of any assistance to
the police. In other words, it was so vague and bereft
of the
necessary details to enable the police to know what was happening
where, when, how and by whom.
[17]
Regarding the appellant’s assertion that he was not on the
freeway on 8 November 2011, the respondent’s counsel
submitted
that this was effectively refuted by the evidence of Grootboom, his
own witness, who testified, contrary to the appellant’s
version, that the appellant called him on his cellular phone on the
morning of 8 November 2011 to tell him that he was on the highway
and
that the truck with platinum had just passed him.
[18]
I have already indicated above that the appellant’s counsel
conceded that conspiracy to commit an offence had been proved
when
the syndicate agreed early in August 2011 to commit the heist and
that the appellant could have been properly convicted on
conspiracy.
It suffices to state that the appellant’s conduct falls
squarely within the legal parameters of conspiracy as
authoritatively
enunciated in
S
v Alexander & others
1965 (2) SA 818
(A) at 821;
S
v Cooper & others
1976
(2) SA 875
(T) at 879B-F. See Snyman: Criminal Law, 4
th
Edition at p292.
[19]
I now turn to deal with whether the appellant’s conduct can
sustain his defence that he had effectively withdrawn or
dissociated
himself from the conspiracy and continuing common purpose with the
syndicate to commit the heist on 7 November 2011.
[20]
It is trite that this question is a factual one to be answered with
reference to the evidence led and the role played by the
appellant.
This requires the court to evaluate the entire mosaic of the evidence
presented, to determine if the proven evidence
is such that it can
sustain a conclusion that the appellant did in fact withdraw from the
planned heist. See
S
v Thebus & another
[2003] ZACC 12
;
2003 (6) SA 505
(CC) para 44.
[21]
This Court enunciated the test for dissociation in
S v Nduli &
others
1993 (2) SACR 501
(A) at p504d-e as follows:
‘
Dissociation
consists of some or other form of conduct by a collaborator to an
offence with the intention of discontinuing his collaboration.
It is
a good defence to a charge of complicity in the eventual commission
of the offence by his erstwhile associate or associates
(see
S
v Nomakhlala & another
1990 (1) SACR (A) 300 (A) at 303g-304d;
S
v Nzo & another
1990 (3) SA 1
(A) at 11H-I;
S
v Singo
[1992] ZASCA 219
;
1993 (2) SA 765
(A) at 771E-773E). The more advanced an accused
person’s participation in the commission of the crime, the more
pertinent
and pronounced his conduct will have to be to convince a
court, after the event, that he genuinely meant to dissociate himself
from it at the time. It remains, I tend to think, a matter of fact
and degree as to the type of conduct required to demonstrate
such an
intention’
.
[22]
This Court expounded the salutary approach further in
S v
Musingadi & others
2005 (1) SACR 395
(SCA) at para 35 as
follows:
‘
What
may be gathered from our case law, however, is that not every act of
apparent disengagement will constitute an effective disassociation.
Compare Snyman
Strafreg
4
th
ed at 267-9. It appears that much will depend on the circumstances:
On the manner and degree of an accused’s participation;
on how
far the commission of the crime has proceeded; on the manner and
timing of disengagement; and, in some instances, on what
steps the
accused took or could have taken to prevent the commission or
completion of the crime. The list of circumstances is not
exhaustive.
To reduce this composite of variables to a workable rule of law may
be artificial, even unwise.’
The
court went further and stated at para 39 that:
‘
The
greater the accused’s participation, and the further the
commission of the crime has progressed, then much more will be
required of an accused to constitute an effective disassociation. He
may even be required to take steps to prevent the commission
of the
crime or its completion. It is in this sense a matter of degree and
in a borderline case calls for a sensible and just value
judgment.’
[23]
In my view, the following pieces of evidence are in summary
destructive of the appellant’s defence of withdrawal and
dissociation from the common purpose to execute the heist: his
untruth that he heard about the use of a bomb for the first time
on 1
November 2011, whilst the transcript shows this was discussed at a
meeting on 13 September 2011 already where he was present;
his
continued attendance of the meetings of the syndicate in particular
the one on 7 November 2011 where the plan for the heist
was further
refined and adopted; his failure to tell the syndicate that he was
withdrawing from the conspiracy; his denial, which
has been proved to
be wrong by Grootboom, that he was on the freeway on 8 November 2011,
the day of the heist; and his unexplained
failure to disclose
sufficient information pertaining to the planned heist which would
have allowed Grootboom to foil it.
[24]
In the circumstances, I am of the view that the trial court was
correct in finding that the appellant’s conduct did not
amount
to effective dissociation from the planned heist. It follows that
there are no grounds on which this Court can interfere
with the
appellant’s convictions by the trial judge.
[25]
The appeal against the sentences was largely dependent on the success
of the appeal against the convictions. No submissions
were advanced
at the hearing on any other aspects. No misdirections were identified
and nor were submissions made that any of the
sentences, or their
cumulative effect, was startlingly inappropriate. I can find no basis
to interfere with the sentences.
[26]
In the result, the appeal is dismissed.
________________
L
O Bosielo
Judge
of Appeal
APPEARANCES:
For
Appellant:
L Crouse (with her K Saziwa)
Instructed
by:
Legal
Aid SA, Port Elizabeth
Legal
Aid SA, Bloemfontein
For
Respondent:
M L Le Roux
Instructed
by:
Director
Public Prosecutions, Port Elizabeth
Director
Public Prosecutions, Bloemfontein