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[2016] ZAGPJHC 379
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Obaba v S (A339/2015) [2016] ZAGPJHC 379 (8 December 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: A339/2015
In
the matter between:
JABU
OBABA
Appellant
versus
THE
STATE
The
State
Case
Summary: Criminal Law – same set of proven facts
giving rise to separate conviction of robbery with aggravating
circumstances and a conviction of attempted murder – failure by
State to establish prerequisites for liability on the basis
of common
purpose in respect of conviction of attempted murder - conviction on
count of attempted murder thus set aside.
JUDGMENT
MEYER,
J (KLAAREN, AJ concurring)
[1]
Following an incident that occurred at about 8.00 pm on 16 September
2010 at First Avenue, Rosettenville, Johannesburg in which
Mr Elphas
Gama was robbed of his cell phone, wallet and an amount of R920 and
during which incident he was stabbed in the abdomen,
the appellant,
Mr Jabu Obaba, and his co-accused, Mr Mandla Shabanggu, were each
convicted by the Regional Court, Johannesburg
of robbery with
aggravating circumstances (count 1) and attempted murder (count 2).
On 24 January 2013, they were each sentenced
to twelve years’
imprisonment for robbery, twelve years’ imprisonment for
attempted murder and the two sentences were
ordered to run
concurrently. This appeal is against the convictions and
sentences.
[2]
The two eyewitnesses who testified for the state were Mr Gama and his
girlfriend, Ms Zanele Sangweni. After work at about
8.00 pm on
16 September 2010, Mr Gama fetched Ms Sangweni from her home at No
[…] Avenue, Rosettenville to go out.
While walking, they
noticed ‘a group of guys’ (they were a group of about
five people according to Mr Gama and about
six to seven according to
Ms Sangweni (‘the group’)) approaching them. Mr
Gama testified that Ms Sangweni had
recognised one person in the
group, who was wearing a white cap, as her friend’s friend.
Ms Sangweni testified that
the person she had recognised was known to
her by the nickname ‘Spikiri’. (Her friend, Ms
Ntsaki Nonyane, was
also a witness for the state and Spikiri was the
appellant’s co-accused in the court
a quo
.)
According to Mr Gama, Ms Sangweni pointed Spikiri out to him
and she also mentioned that they ‘are thugs, they
are robbing
people.’ Because the group was familiar with Zanele, so
Mr Gama testified, he had thought that they would
not cause them any
harm nor would they rob them.
[3]
The group, however, surrounded Mr Gama and Ms Sangweni. They
blocked their way and prevented them from leaving.
Mr Gama
testified that he had been told not to move. The person who Ms
Sangweni pointed out to him as Spikiri demanded his
phone, which he
handed over to him. He then demanded his wallet. When Mr
Gama responded that he did not have one on
him, those at his back
grabbed his hands and punched him on his shoulders and head.
Spikiri produced ‘something like
a screwdriver’ from
under his t-shirt. Ms Sangweni testified that Spikiri had
produced a knife from under the front
of his trousers. Mr Gama
testified that Spikiri then had stabbed him in his abdomen. Mr
Gama screamed and told them
to let go of him and take whatever they
wished. He also heard Ms Sangweni screaming, saying ‘why
are you doing this’
and one of them saying ‘are you
familiar with us.’ Ms Sangweni, according to Mr Gama,
then said something, but
he could not hear what she was saying.
Ms Sangweni also testified that she had tried to intervene and that
after Mr Gama
had been stabbed she said: ‘Spikiri what
are you doing, why are you doing this?’ Mr Gama testified
that
one of the persons in the group had said to the others that they
must stop assaulting him and one had said to him and to Ms Sangweni
to run away. Ms Sangweni then ran back to her home, which was
nearby, but he could not run because of the injury to his abdomen.
The group then left him. His phone, wallet and an amount of
R920 were stolen from him during the ordeal. He was later
taken
to the Alberton Clinic, where he was operated and hospitalised for
four days.
[4]
Mr Gama was unable to identify any one of his assailants. But
Ms Sangweni identified the appellant’s co-accused,
Spikiri.
She had known him for about a month. He had an affair with her
friend, Ms Ntsaki Nonyane, or otherwise known
as Sisi. She also
pointed the appellant out to the police ‘as one of the robbers
on that day’. She testified
that the appellant had been
wearing a black t-shirt. During the course of the incident the
appellant, according to Ms Sangweni,
remarked as follows: ‘Oh,
this is Zanele, I did not see.’ Ms Sangweni testified
that she knew the appellant
by sight. She used to see him ‘very
often’. He used to walk in the street where she was
residing.
She caused the appellant to be arrested when she saw
him at the tavern where her friend, Ms Nonyane, was employed.
[5]
A reading of the record satisfies me that the trial court was correct
in its finding that all three state witnesses were honest
witnesses
and their evidence reliable. I am also satisfied that Ms
Sangweni’s identification of the appellant was reliable.
There was sufficient lighting; Mr Gama and Ms Sangweni stood under a
streetlight when the incident took place. Ms Sangweni
had an
adequate opportunity to observe the appellant. He was standing
in front of Mr Gama and Ms Sangweni and was facing
them.
[6]
When the evidence of the appellant and that of his co-accused is
considered separately and individually and weighed up against
the
evidence of the state witnesses, particularly the evidence of Ms
Sangweni who implicated the appellant, I am satisfied that
his denial
of the evidence against him cannot reasonably possibly be true.
It is not a reasonable possibility that Mr Gama
and Ms Sangweni could
have been mistaken in the observations to which they testified.
Nor do I consider it to be a reasonable
possibility that Ms Sangweni
could be mistaken in her identification of the appellant. The
facts proved against the appellant
show that he was rightly convicted
of robbery with aggravating circumstances. The appellant
actively associated himself with
the group and he participated in the
forming of a circle around Mr Gama and Ms Sangweni, thereby blocking
their way and preventing
them from escaping and enabling the
commission of the theft by violence.
[7]
I now turn to his conviction of attempted murder. In
Mahlamuza
and another v State
2015 (2) SACR 385
(SCA) para 10, the Supreme
Court of Appeal reaffirmed the decision in
S v Moloto
1982 (1)
SA 844
(A), wherein-
‘
. . . it was held that where
attempted murder is committed in connection with a robbery the State
is entitled, according to the
circumstances, to charge the accused
with robbery and with attempted murder and the court is entitled to
find him guilty on the
two separate offences provided that the robber
used excessive violence that exceeded the limits and bounds of
robbery (which is
violence that puts the life of the victim in
danger) and it was proved beyond reasonable doubt that the accused
also had the intention
to kill and not merely to use force aimed at
temporarily incapacitating the victim.’
[8]
There was no evidence of any prior agreement, either expressly or by
implication, to kill Mr Gama. Ms Sangweni, whose
evidence I
have found the trial court correctly accepted, testified that the
appellant committed no physical act. It
was his
co-accused, Spikiri, who produced a knife from under his clothes and
then stabbed Mr Gama in the abdomen. The act
which the
appellant was proved to have committed does not give rise to an
inference beyond reasonable doubt that he agreed with
Spikiri or any
other person that Mr Gama was to be killed. The question,
therefore, is whether the evidence justifies a finding
of common
purpose between the appellant and the group to also kill Mr Gama and
not merely to use force aimed at temporarily incapacitating
him.
[9]
In the oft-quoted passage in
S v Mgedezi and others
1989 (1)
SA 687
(A), at 705I-706C, Botha JA said the following:
‘
In the absence of proof of a
prior agreement, accused No 6, who was not shown to have contributed
causally to the killing or wounding
of the occupants of room 12, can
be held liable for those events, on the basis of the decision in
S
v Safatsa and Others
1988
(1) SA 868
(A), only if certain prerequisites are satisfied. In
the first place, he must have been present at the scene where the
violence
was being committed. Secondly, he must have been aware
of the assault on the inmates of room 12. Thirdly, he must have
intended to make common cause with those who were actually
perpetrating the assault. Fourthly, he must have manifested his
sharing of a common purpose with the perpetrators of the assault by
himself performing some act of association with the conduct
of the
others. Fifthly, he must have had the requisite
mens
rea
; so, in respect of the
killing of the deceased, he must have intended them to be killed, or
he must have foreseen the possibility
of their being killed and
performed his own act of association with recklessness as to whether
or not death was to ensue.’
[10]
Nothing in the evidence can justify a finding of common purpose
between the appellant and the group, particularly Spikiri,
who
launched the attack on Mr Gama. The state, at the very least,
failed to prove beyond reasonable doubt that the appellant
had the
intention to kill Mr Gama (and not only to use force aimed at
temporarily incapacitating him) or that he foresaw the possibility
of
Mr Gama being killed and that he performed his own act of association
with recklessness as to whether death was to ensue.
There are
no proven facts that give rise to an inference that the appellant was
aware that Spikiri was armed with a knife when
he together with the
other members encircled Mr Gama and before Spikiri had produced the
knife from under his clothes and had stabbed
Mr Gama. The
appellant’s conviction of attempted murder and the sentence of
twelve years’ imprisonment imposed
upon him pursuant to such
conviction, therefore, must in my view be set aside.
[11]
Finally, the matter of sentence. In sentencing the appellant
the trial court exercised its discretion judicially and
the sentence
of twelve years’ imprisonment imposed upon him pursuant to his
conviction of robbery with aggravating circumstances
does not induce
a sense of shock (see
S v De Jager
1965 (2) SA 616
(A) at
628H-629B). All the relevant factors and circumstances were
considered and duly taken into account by the trial court.
Interference with the imposed sentence is not warranted.
[12]
In the result, the following order is made:
(a) The appeal by the
appellant against his conviction of attempted murder (count 2) is
upheld. His conviction and sentence
on this count are set
aside.
(b) The appeal by the
appellant against his conviction of robbery with aggravating
circumstances (count 1) and against the sentence
of twelve years’
imprisonment imposed upon him pursuant to this conviction is
dismissed.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Date
of hearing: 3 November 2016
Date
of judgment: 8 December 2016
Appellant’s
counsel: LS Nkuna
Instructed
by: Johannesburg Justice Centre
State
counsel: NP Serepo