Brief Summary

Criminal Law — Murder — Common purpose — Accused charged with murder, theft, and drug possession — Evidence of common purpose established through actions of accused during incident — Accused found guilty of all counts. The accused were charged with the murder of Lethukuthula Sifisokuhle Zulu, theft of various items, and possession of cocaine, all occurring during a night of drinking and subsequent events at the deceased's residence. The state alleged that the accused acted in execution of a common purpose, although the specifics of this common purpose were not clearly defined. The court held that the evidence presented sufficiently established the existence of a common purpose among the accused, leading to their conviction on all counts.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned a criminal trial in the Gauteng Division, Johannesburg, in which the State prosecuted four accused persons (Moremane, Thloele, Koaile and Mmola) on three counts arising from events that occurred during the night of 5–6 November 2020 at the deceased’s residential unit in North Riding, Johannesburg North.

The accused were indicted on murder (count 1), alleged to fall under section 51(2) of the Criminal Law Amendment Act 105 of 1997; theft (count 2); and contravention of section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 (count 3), framed as possession of cocaine. The State’s case on murder was expressly advanced on the basis of common purpose and dolus eventualis, and it relied substantially on circumstantial evidence.

All accused pleaded not guilty to all counts and provided no plea explanation in terms of section 115 of the Criminal Procedure Act 51 of 1977. During the trial, various exhibits were admitted (including section 220 admissions, post-mortem documentation, toxicology results, and admissions made to police officers). There were also trials within a trial concerning the admissibility of each accused’s admissions; the court ruled all admissions admissible.

The general subject-matter of the dispute was whether the State proved beyond reasonable doubt that the accused drugged and killed the deceased (as alleged), and whether it proved the accused’s guilt on theft and drug possession.

2. Material Facts

It was common cause that on the night of 5 November 2020, the deceased and his friend Nkosi Msimang encountered the accused at News Café in Randburg, where the accused indicated they were celebrating accused 1’s birthday. The deceased and Msimang purchased liquor for the accused, and later the groups joined each other and drank together until the venue closed. The deceased showed interest in accused 1, and Msimang showed interest in accused 4.

When the restaurant was closing, Msimang and accused 4 went to the deceased’s residential unit to fetch money to pay the bill. After the bill was settled, the deceased, Msimang and all four accused went to the deceased’s unit to continue drinking. At the unit, the group continued consuming alcohol. Msimang and accused 4 went to Msimang’s bedroom and became intimate; the deceased went to his bedroom and accused 1 joined him. It was common cause that the deceased and accused 1 had consensual sexual intercourse.

Accused 4 later directed accused 2 to enter the deceased’s bedroom and directed accused 3 to join accused 4 and Msimang in the other bedroom. During these events, accused 4 searched Msimang’s clothing when he was falling asleep, found R3600, and shared it with accused 3 (without disclosing this to the other accused). Thereafter accused 2 and 3 returned to the sitting room.

After intercourse, accused 1 went to the sitting room, opened a drawer in the TV stand, and found money. Accused 4 was called to the sitting room, where accused 1 and accused 4 fought over the money and broke bottles. When the altercation stopped, the money from the drawer was counted and shared equally among all four accused.

Accused 1 later returned to the deceased’s bedroom and found him lying on the floor snoring, and left him there. Accused 4 returned to Msimang’s bedroom and found him sleeping. In the early hours of 6 November 2020, the accused left the unit and it was common cause that they stole items from the unit before leaving.

Later on 6 November 2020, a neighbour (Hove) noticed keys at the unit and that the burglar door was partially closed. The complex security guard and Hove entered the unit, found it ransacked, found the deceased lying on the bedroom floor unresponsive, and found Msimang sleeping and disoriented. Netcare 911 personnel attended and the deceased was declared dead. Police attended and processed the scene.

A post-mortem examination was conducted. The pathologist (Dr Hlalele) found no injuries and recorded the cause of death as consistent with drug-related death (cocaine). Toxicology testing detected cocaine in blood, gastric contents and urine, with the reported concentrations set out in the toxicology report. The pathologist also recovered a used condom from the deceased’s body; DNA analysis linked it to accused 1.

It was also common cause that accused 3 was found, upon arrest, in possession of certain tablets and substances which forensic analysis associated with carbamazepine, and that carbamazepine is listed in Schedule 5 of the Medicines and Related Substances Control Act 101 of 1965. Some stolen items were recovered after the accused were arrested.

The court identified as disputed issues (among others) whether the accused possessed cocaine at the scene, whether they administered cocaine to the deceased to incapacitate him for theft, whether they unlawfully and intentionally killed him, whether additional specific items and amounts (including a television and R60 000) were stolen, and whether the accused were guilty of possession of cocaine as charged.

3. Legal Issues

The central legal questions were whether the State proved, beyond reasonable doubt, that the accused were guilty of murder on the basis that the deceased died after being drugged with cocaine, and that the accused either directly caused that death or were liable through common purpose and dolus eventualis. This entailed issues of application of legal principles to circumstantial facts, including whether the proved facts justified the inference sought by the State and excluded other reasonable inferences.

A further legal question was whether the State proved the accused guilty of theft, including whether the evidence supported common purpose and whether the State proved the theft of certain disputed items (notably the television and R60 000).

The third principal question was whether the State proved possession of cocaine under section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992, given the evidential position that the accused were not found in possession of cocaine.

A subsidiary evidentiary issue arose regarding the use of extra-curial admissions: specifically whether admissions by one accused could be used against another accused, and the court’s approach was governed by binding authority on inadmissibility of such admissions against co-accused.

4. Court’s Reasoning

The court approached the matter by reaffirming foundational criminal-law principles on onus and standard of proof, namely that the State bears the burden to prove guilt beyond reasonable doubt, and that the accused are entitled to an acquittal if their version is reasonably possibly true, even if the court does not subjectively accept it. In evaluating the murder charge, the court emphasised that the State relied on circumstantial evidence and that the correct approach required a holistic assessment of the evidence rather than a piecemeal consideration, together with compliance with the inferential reasoning requirements stated in R v Blom 1939 AD 202–203.

On the murder count, the cause of death being consistent with cocaine-related death was not disputed, but the decisive question was whether the State proved who caused the death and whether it proved that the accused administered cocaine to the deceased (or otherwise brought about his death with the requisite mens rea). The State relied materially on the post-mortem evidence and the pathologist’s view that the presence of cocaine in gastric contents implied ingestion through the mouth and supported the conclusion that the deceased did not take cocaine voluntarily, but was administered the drug.

The court evaluated this contention against the evidence of the defence expert, Dr Naidoo, a forensic pathologist with extensive experience. Dr Naidoo disputed the inference that cocaine in gastric contents necessarily indicated involuntary administration by another person. He testified that cocaine can be taken by several routes, including oral ingestion, and that even if ingestion were accepted, it did not exclude the reasonable possibility of voluntary consumption by the deceased. He further gave an opinion that, given the low levels detected, the death was more probably attributable to a combination of alcohol and cocaine producing cardiac arrest or heart failure, which the State ultimately accepted in argument as consistent with what occurred.

The court preferred Dr Naidoo’s opinion over Dr Hlalele’s on the key inferential point about ingestion and involuntariness, explicitly grounding that preference in his expertise and experience in unexplained deaths and drug-related fatalities. The court also considered investigative limitations in Dr Hlalele’s approach as relevant to whether the State could establish its theory beyond reasonable doubt, including the absence of evidence of alcohol testing outcomes in the post-mortem report despite alcohol consumption being common cause, and the failure to take swabs from the deceased’s nostrils despite information suggesting possible drug involvement and despite evidence (including accused 1’s assertions) that there may have been powder on the deceased’s nose.

The court further considered the State’s theory that cocaine was used to “drug” the deceased to facilitate theft. It accepted Dr Naidoo’s evidence that cocaine is a stimulant and is not ordinarily used to sedate a victim, which weakened the plausibility of the State’s narrative that cocaine was intentionally administered for incapacitation. Against this, the court noted that the State also relied on the presence of tablets and on admissions relating to sleeping tablets, but it found that such material did not establish that the accused possessed or administered cocaine to the deceased.

On the evidentiary question of admissions, the court rejected the State’s attempt to use admissions by accused 3 and accused 4 against accused 1, applying the rule in Litako & Others v S (584/2013) [2014] ZASCA 54 (16 April 2014) that an extra-curial admission by one accused is not admissible against another. The court also indicated that, even if such admissions were admissible, they did not establish the specific fact required for the murder theory, namely possession and administration of cocaine by accused 1.

Ultimately, applying the inferential principles relating to circumstantial evidence and the distinction between inference and speculation, the court held that there were no positive proved facts identifying the source of the cocaine or showing how it entered the deceased’s body, and therefore the State’s murder case did not meet the standard required. It concluded that the State failed to prove beyond reasonable doubt that the accused unlawfully and intentionally killed the deceased, whether directly or through common purpose and dolus eventualis.

In contrast, on the theft count, the court considered that the accused’s own admissions and the common cause narrative established active participation by all accused in stealing property from the deceased’s residence and sharing money taken from within the unit. It was satisfied that the proved facts supported an inference that the accused acted in common purpose in committing theft.

The court also addressed disputed theft items. It accepted Msimang’s evidence that R60 000 was inside the laptop bag, and drew the inference that accused 4, who stole the laptop, also stole that cash. It rejected the accused’s denial that there was a television set in the sitting room, found that denial false, and accepted Msimang’s evidence that the television was stolen.

On the drug possession count as charged, the court reasoned that it was common cause that the accused were not found in possession of cocaine, and therefore the State failed to prove the offence of possession of cocaine under the Drugs and Drug Trafficking Act.

Finally, in relation to the trials within a trial, the court briefly recorded that it admitted each accused’s admissions after being satisfied, on the evidence of the relevant police officers and the contents of the pro forma documentation, that each admission was made freely and voluntarily, without assault, threat, or improper influence, and with an understanding of constitutional rights and the choice regarding legal representation.

5. Outcome and Relief

The court acquitted all accused on count 1 (murder). It convicted all accused on count 2 (theft). It acquitted all accused on count 3 (contravention of section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992, framed as possession of cocaine).

The judgment, as provided, did not include a discrete order on costs, and no civil costs order arose in the criminal proceedings.

Cases Cited

R v Difford 1937 AD 370.

R v Ndhlovu 1945 AD 369.

S v Kubeka 1982 (1) SA 534 (W).

S v Olwage (A1242/05) [2008] ZAGPHC 120 (25 April 2008).

Mashiya v S (41/1449/2005) [2013] ZAGPJHC 43 (7 March 2013).

Ranzani Ndumalo v The State (Case no 450/2008) [2009] ZASCA 113.

R v Blom 1939 AD 202–203.

S v Zuma 2006 (2) SACR 191 (W).

Litako & Others v S (584/2013) [2014] ZASCA 54 (16 April 2014).

S v Essack and Another 1974 (1) SA 1.

Caswell v Powell Duffryn Associated Colliers Ltd (1939) 3 All ER 722.

Legislation Cited

Criminal Law Amendment Act 105 of 1997, section 51(2).

Criminal Procedure Act 51 of 1977, sections 91, 115, 220 and 258.

Drugs and Drug Trafficking Act 140 of 1992, section 4(b) read with sections 1, 13, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 64, and Part II of Schedule 2.

Medicines and Related Substances Control Act 101 of 1965, Schedule 5 (as referenced in relation to carbamazepine).

Rules of Court Cited

No rules of court were cited in the judgment as provided.

Held

The court held that the State failed to prove beyond reasonable doubt, on the circumstantial evidence presented, that the accused were the source of the cocaine found in the deceased’s system or that they administered cocaine to him, and therefore failed to prove the elements of murder, whether on a direct perpetration basis or on common purpose and dolus eventualis.

The court held that the evidence, including admissions and common cause facts, established beyond reasonable doubt that all accused participated in the theft of money and items from the deceased’s residence, acting in furtherance of a shared objective, and it accepted evidence supporting the theft of a laptop containing R60 000 and a television set.

The court held that the State failed to prove possession of cocaine under the Drugs and Drug Trafficking Act because it was common cause that the accused were not found in possession of cocaine, and the evidential material did not bridge that gap.

LEGAL PRINCIPLES

The judgment applied the principle that the State bears the onus to prove an accused’s guilt beyond reasonable doubt, and that an accused is entitled to acquittal where their version is reasonably possibly true, even if the court does not accept it as probably true, as derived from the authorities cited.

In relation to circumstantial evidence, the judgment applied the requirements that the inference sought must be consistent with all proved facts, and the proved facts must exclude other reasonable inferences, together with the caution that evidence must be assessed holistically rather than in fragments.

The judgment applied the principle that inference must be distinguished from conjecture or speculation, and that where there are no positive proved facts from which the necessary inference can properly be drawn, the State’s case cannot succeed on speculation.

On evidentiary admissibility, the judgment applied the principle that an extra-curial admission by one accused is not admissible against a co-accused, as binding authority, and it treated that rule as dispositive of the State’s attempt to rely on certain accused’s admissions against others.

On the doctrine of common purpose, the judgment accepted that participation and shared intent may be inferred from proved facts on the theft count, but held that the necessary factual foundation was absent to sustain common-purpose liability for murder on the State’s cocaine-administration theory.

S v Moremane and Others (SS 119/2021) [2023] ZAGPJHC 994 (31 August 2023)