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[2014] ZASCA 57
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Dewnath v S (269/13) [2014] ZASCA 57 (17 April 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 269/13
In the matter
between:
BEENESH
DEWNATH
..........................................................................................
APPELLANT
and
THE
STATE
.........................................................................................................
RESPONDENT
Neutral
citation:
Dewnath v S
(269/13)
[2014] ZASCA 57
(17 April 2014)
Coram:
Maya, Willis and Saldulker JJA and Van
Zyl and Mocumie AJJA
Heard: 7 March
2014
Delivered: 17
April 2014
Summary:
Criminal appeal against conviction ─
appellant convicted of murder by common purpose ─ requirements
of common purpose
restated ─ active association ─ mens
rea ─
the most critical requirement
of active association is to curb too wide a liability.
ORDER
On
appeal from:
KwaZulu-Natal High Court,
Pietermaritzburg (Jappie,
Gyanda and
Mokgohloa JJ sitting as Full Court):
1 The appeal is
upheld.
2 The order of
the court a quo is set aside and replaced with the following:
‘
The
appellant’s conviction and the sentence imposed are set aside.’
JUDGMENT
Mocumie AJA
(Maya, Willis and Saldulker JJA and Van Zyl AJA concurring):
[1] This appeal
arises from a bitter and murderous sibling rivalry. The appellant,
together with his parents, Mr Dewnath Ramkisson,
Mrs Nirmalah
Ramkisson and two co-accused, were arraigned in the Kwazulu Natal
High Court, Pietermaritzburg for murder of the deceased,
Mr Jairam
Ramkisson, and the attempted murder of his wife Mrs Sashika
Ramkisson.
[2] The trial
court convicted all the accused with murder. They were also convicted
of attempted murder, except the appellant. The
appellant was
sentenced to 15 years’ imprisonment. On appeal to the full
bench (Jappie, Gyanda and Mokgohloa JJ), the appellant
and his
parents’ convictions and sentences were confirmed. The appeal,
in respect of the appellant only, is with special
leave of this
court.
[3] The State led
the evidence of Mr William Themba Sithole (Sithole), who had pleaded
guilty to the charges. He testified against
the four as an accomplice
in terms of s 204 of the Criminal Procedure Act 51 of 1977 (the CPA).
[4] Sithole
testified that he was brought into contact with the appellant’s
father by his co-accused, Jabulani Mkhize (Mkhize),
who in turn had
been recruited by the appellant’s father to kill the deceased.
Mkhize took him to the appellant’s family
business, a fish shop
adjacent to the deceased’s business, where the proposed murder
was discussed. Sithole demanded a fee
of R35 000 to carry out
the assassination. The appellant’s father offered only R15 000.
They could not agree on the
amount. He left to consider the reduced
fee. The next day he returned to the shop, met again with the
appellant’s father
and agreed to a reduced fee of R20 000.
He demanded a down payment which was to be made upfront. The two
conferred in the
back of the shop whilst the appellant’s wife,
a young woman who served as a shop assistant and the appellant, were
in the
front of the shop, apparently serving customers. The
appellant’s father did not agree with Sithole’s demand
for a down
payment and went to call his wife to mediate. He returned
with her and the appellant in tow.
[5] According to
Sithole, the appellant’s mother refused to accede to his
demand. She said that in 2005 a person whom they
had hired to kill
the deceased disappeared with a pistol and R200 they had given him
upfront. Sithole further testified that the
appellant then uttered
the following words: ‘But why are you asking for so much money?
The person that we are asking you
to kill is absolutely worthless. I
would understand if he was a member of the taxi business. If I wasn’t
involved in the
police, with the police, I would kill him myself.’
After uttering those words, the appellant left the room, leaving
Sithole
with his parents. They continued with the negotiations.
[6] When he left
the Ramkissons on that day there was still no agreement in place.
There is no evidence that any further discussions
or negotiations
took place, or that the appellant was privy to such negotiations, or
that he formerly approved what was decided
in his absence. Prior to
this day, Sithole did not know the appellant nor could he remember if
he had seen him before. A few days
later, Sithole waited for the
deceased as he was closing the shop at around 18h00. As the latter
locked the shop door he shot and
killed him. When the deceased’s
wife turned around and attempted to stop him, he shot her as well.
She survived the shooting.
The next day, the appellant’s
parents paid him for having killed the deceased.
[7] The main
attack against the judgment of the trial court is that it erred in
convicting the appellant of murder based on common
purpose. It was
contended that the State failed to prove that the words uttered by
him were sufficient to form an active association
with the common
purpose, between his parents and their co-accused, to kill the
deceased.
[8] The appellant
testified in his own defence and denied any involvement in the
commission of the murder or having uttered the
words testified to by
Sithole. The trial court accepted Sithole’s evidence about the
involvement of the appellant and that
it proved that he had actively
associated himself with the commission of the murder of the deceased.
[9] The question
is whether the trial court correctly concluded that the evidence
implicating the appellant was sufficient to conclude
that he acted in
common purpose with the conspirators and had the necessary
mens
rea
justifying a conviction of murder.
[10]
In
S
v Mgedezi
[1]
this court stated the following:
‘
In
the absence of proof of 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 liable for those events, on the
basis of the decision in
S v Safatsa &
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 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 that the possibility
of their being killed and
performed his own act of association with recklessness as to whether
or not death was to ensue.’
[11]
This court further in
S
v Le Roux
[2]
stated:
‘
In
S v Mgedezi
& others
1989 (1) SA 687
(A) this court dealt with a situation where there was
no prior plan to commit the offence of public violence. It was stated
there
that a general and all-embracing approach regarding all those
charged is not permissible. It was stated further that the conduct
of
the individual accused should be individually considered, with a view
to determining whether there is a sufficient basis for
holding that a
particular accused person is liable, on the ground of active
participation in the achievement of a common purpose
that developed
at the scene. In that case the following was stated:
“
A
view of the totality of the defence cases cannot legitimately be used
as a brush with which to tar each accused individually,
nor as a
means of rejecting the defence versions
en
masse
.”
And
further
:
‘
The
trial Court was obliged to consider, in relation to each individual
accused whose evidence could properly be rejected as false,
the facts
found proved by the State evidence against that accused, in order to
assess whether there was a sufficient basis for
holding that accused
liable on the ground of active participation in the achievement of a
common purpose. The trial Court’s
failure to undertake this
task again constituted a serious misdirection.
’
(My
emphasis)
[12]
In
S
v Thebus
[3]
the Constitutional Court reiterated the applicability of the doctrine
as follows:
‘
If
the prosecution relies on common purpose, it must prove beyond a
reasonable doubt that each accused had the requisite mens rea
concerning the unlawful outcome at the time the offence was
committed. That means that he or she must have intended that criminal
result or must have foreseen the possibility of the criminal result
ensuing and nonetheless actively associated himself or herself
reckless as to whether the result was to ensue.’
[13]
In convicting the appellant, the trial court accepted the appellant’s
version that he had no prior agreement with Sithole
and his parents
to kill the deceased. But it reasoned that
‘
the
only inference to be drawn was that when the appellant uttered those
words, he did so with the intent to persuade Sithole to
carry out the
plan and force him to abandon or forgo his demand for a down payment
or deposit’. On appeal, the court a quo
found that the trial
court could not be faulted when it concluded that the conduct of the
appellant was consistent with conduct
associating himself with the
common purpose to have the deceased killed.
[14] Although
during the trial the appellant denied having uttered the words
Sithole imputed to him, in this court the trial court’s
acceptance of Sithole’s evidence and its rejection of the
appellant’s evidence on this aspect was, quite correctly
in my
view, not placed in issue. It was accordingly conceded on his behalf
that he did utter those words. However, it was submitted
that the
words were insufficient for a conclusion that the State had proved
that the appellant actively associated himself with
the plan by his
parents or Sithole to kill the deceased. It was further argued that
there was no reliable evidence linking the
appellant to any of his
parents and Sithole’s transgressions prior to and after the
commission of the murder. And even if
it were accepted that the words
uttered by the appellant connected him to the commission of the
murder, there was insufficient
proximity with the final result to
justify a conviction of murder on the basis of common purpose. If
anything, so it was argued,
the State relied solely on what the trial
court stated in its judgment, namely that the only inference that
could be drawn from
the circumstances was that the appellant, by
uttering those vengeful words, wanted to influence Sithole to commit
the murder.
[15]
In the light of the facts of this case, it is important to note that
the common purpose doctrine as espoused in
S
v Mgedezi & others
has been pronounced by the Constitutional Court to be
constitutional.
[4]
The most
critical requirement of active association is to curb too wide a
liability. Current jurisprudence, premised on a proper
application of
S
v Mgedezi & others
,
makes it clear that (i) there must be a close proximity in fact
between the conduct considered to be active association and the
result; and (ii) such active association must be significant and not
a limited participation removed from the actual execution
of the
crime.
[16]
There is no evidence that the appellant actively participated in the
murder apart from the fact that he walked in from the
front part of
the shop to the back where his father was with Sithole and uttered
the vengeful words. To my mind, therefore, the
State had to prove
some form of active participation on the part of the appellant than
just the words he uttered. Mere approval
of the commission of the
murder sought by the perpetrators does not suffice.
[5]
As morally reprehensible as it is that the appellant wished his uncle
dead or even thought of killing him himself, what he said
does not
amount to active association with the common purpose of his parents
and Sithole. On the accepted evidence his ‘participation’
was insignificant. It was limited and removed from the actual
executive action. It can best be regarded as evidence that he had
some knowledge of the plan that was in the process of being hatched
to kill the deceased.
[17]
A conviction on murder on this set of facts would not withstand the
ordinary principles of criminal liability, let alone the
principles
of causation. This is so because, generally speaking, in our law, the
guilt of an accused falls to be decided with reference
to his own
acts and his own state of mind.
[6]
There is simply no basis to conclude that the appellant intended to
kill the deceased. Furthermore, the inference that the trial
court
sought to draw was not the only inference to be drawn from the proven
facts.
[7]
[18]
Although the appellant was embroiled in the bitter rivalry between
the two families and there may be a suspicion that he was
in cahoots
with his parents to kill the deceased, he cannot be convicted on
suspicion alone. The State must prove its case beyond
reasonable
doubt and an accused does not bear any onus to prove his innocence.
Whether one subjectively believes him or her is
not the test. The
test is whether there is a reasonable possibility that his evidence
may be true.
[8]
For these
reasons, the appeal must succeed.
[19] In the
result, the following order is granted.
1
The appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
The
appellant’s conviction and the sentence imposed are set aside.
’
B
C MOCUMIE
ACTING
JUDGE OF APPEAL
APPEARANCES:
For Appellant...
K J Kemp
Instructed by:
Anand-Nepaul
Attorneys, Durban
Phatshoane Henney
Inc, Bloemfontein
For Respondent...
H M Zulu
Instructed by:
The Director of
Public Prosecutions,
Pietermaritzburg
The Director of
Public Prosecutions,
Bloemfontein
[1]
S
v Mgedezi & others
1989 (1) SA 687
(A) at 705I-706C.
[2]
S
v Le Roux & others
2010
(2) SACR 11
(SCA) para 17. See also
Scott
v S
(473/10)
[2011] ZASCA 121
(31 August 2011) para 23;
Azwihangwisi
Mmboi v S
(167/12)
[2012] ZASCA 142
(28 September 2012).
[3]
S
v Thebus
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) para 49;
S
v Safatsa above
;
S
v Mgedezi
&
others
above at 705I-706C.
[4]
S
v Thebus
above.
[5]
S
v Khumalo & andere
[1991] ZASCA 70
;
1991
(4) SA 310
(A) at 351E-F.
[6]
See
S
v Thomo & others
1969 (1) SA 385
(A) at 394B-C.
[7]
R
v Blom
1939
AD 188
at 202-203.
[8]
S
v Shackell
2001
(2) SACR 185
(SCA) at 194H-H;
S
v V
2000
(1) SACR 453
(SCA) at 455A-B.