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[2022] ZAFSHC 95
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S v Togowe (66/2017) [2022] ZAFSHC 95 (19 April 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 66/2017
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THE
STATE
and
NTSANE
TOGOWE
HEARD
ON:
10, 11,16,17,18 and 19 OCTOBER 2017
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED
ON:
19 APRIL 2022
AMENDED
JUDGMENT IN TERMS OF RULE 42
[1]
On 19 October 2017 at 11h00 after listening to the address by both
Counsels of the
parties, I directed that this matter should stand
down until 14h15 that same afternoon, in order to consider the
verdict. When
the court resumed at 14h15 the accused had vanished
into thin air and this necessitated that a warrant for his arrest
should be
authorised for immediate issue and execution. His bail was
provisionally forfeited to state. He was never arrested nor did he
appear
until his bail was finally forfeited to the state. The warrant
for his arrest remained in circulation. He has since been arrested
about four years later, apparently in Lesotho and formally handed to
the authorities in this country. I now hand down the judgment
which
stood down on 19 October 2017.
[2]
The late L[....] A[....] H[....], hereinafter referred to as the
deceased, had during
his lifetime conducted a business of a tavern
and a bottle store at his residential place in Mangaung. On the
premises he stayed
in a permanent life partnership with one M[....]
C[....] M[....]1, an educator by profession. The deceased had in his
employment
one D[....] M[....]2 and one M[....]3.
[3]
The deceased was fatally shot in his house on the 29 March 2016, a
Tuesday immediately
after the long Easter weekend. Certain items,
namely, money, a wrist watch, motor vehicle keys, a firearm and cell
phones were
unlawfully taken from his house and from the said M[....]
M[....]1 and D[....] M[....]2 by three unknown people. Of the
said
people one was unarmed while the remaining ones were armed with
a knife and a firearm respectively.
[4]
Five people including the accused before court were subsequently
arrested for these
offences. Charges were later withdrawn in the
lower court against all the accused including those against the
accused before court
after numerous remands. The charges have since
been reinstated against the accused before court, Mr Ntsane Togowe,
and he has since
been indicted for murder and robbery where
aggravating circumstances are present, read with, inter alia, the
provisions of sections
51 (1) and 51(2) (a) respectively of the
Criminal Law and Related Matters Amendment Act 105 of 1997.The State
is represented by
Adv. Bontes while the accused was, before he
vanished and during the entire trial until the address by both
Counsel represented
by Adv. Tshabalala on instructions of the Legal
Aid Board South Africa. Adv. Tshabalala is no longer with the Legal
Aid Board of
South Africa and Ms Abrahams from the same institution
now appears for the accused.
[5]
The accused pleaded not guilty on both counts and essentially denied
that he was one
of the people who murdered and /or robbed the
complainants herein. He specifically denied being at the place of the
scene of this
incident on the alleged date and time.
[6]
State led the evidence of Ms M[....]1. She testified that on 29 March
2016 she was
in the sitting room busy marking scripts of her
learners. The deceased was in the bedroom resting. At some stage she
went into
the bedroom where the deceased was and she found the latter
busy counting money she and the deceased were to bank later that day.
She went back to her work in the sitting room and continued with her
work.
[7]
At about 11h35 she heard the deceased running water for a bath in
their bathroom.
Later she heard a door of the kitchen opening but she
did not turn to look as she thought it was the employees going on, in
their
business. She then heard people breathing heavily and when she
lifted her head she saw three men, Ms M[....]2and M[....]3
with
the three men behind them. Of the three men the tallest of them
approached her with a knife lifted in the air. She screamed
and the
deceased asked what was happening. The other two men with Ms
M[....]2and M[....]3 in front of them went to the bedroom.
She fell
to the ground. She does not know why she fell. She then heard when
the deceased asked what those men wanted but there
was no response.
She heard a shots being fired from the bedroom.
[8]
The two men who were in the bedroom exited. One still had a firearm
and the other
was unarmed. The man with the firearm instructed her to
stand up and he also demanded keys to the safe. At that stage she did
not
take a good look at the said person with a firearm. She went to
the bedroom with the man of the firearm. She saw the deceased lying
on the floor at the door leading from the bathroom to the bedroom.
They were forced to jump over the body of the deceased in order
to
get into the bathroom where the safe was.
[9]
She found the keys and handed them to the man with a firearm. That
man tried to open the safe but he could not open it as his
hands were
shaking or shivering. That man gave her the keys and demanded that
she open the safe. She took those keys and opened
the safe. Inside
the safe was a small firearm. That man demanded money and when she
could not produce it he took the small firearm.
That man left the
bedroom and later she heard the deceased’s Colt bakkie driving
away outside. When she went outside the
bakkie was not there. She did
not know who drove with it. She was neither assaulted nor did she see
anyone being assaulted.
[10]
She testified that the man with a firearm was dark in complexion and
that his eyes were full
of anger. She further indicated that the said
man had a mark which looked like a discolouration on one of his
cheeks. She described
the said discolouration by saying that it
looked like a skin which was burnt by lightening creams or what she
described as an irritated
skin. She further testified that the said
man of the firearm was wearing black clothes and that he wore a hat
which covered his
ears. She managed to observe that man for about
four minutes while in the bathroom and at the time when the said man
was trying
to open the safe.
[11]
On 06 April 2016 she and Ms M[....]2attended an identification parade
and she managed to identify
the person who was holding the firearm in
the house on 29 March 2016 as the accused before court. She testified
that after the
events of the 29 March 2016 until the 06 April 2016
when an identification parade was held, she never saw the accused
anywhere.
[12]
According to this witness the following items went missing on that
fateful day, namely, keys
of four motor vehicles, a brown wallet, a
gold Pierre Cardin wrist watch, bank cards and receipts. She
testified that on 31 March
2016 she went to the office of Captain
Skota to read her statement. While in that office, it so happened
that she should look around
the boxes which were in the said office.
She saw a Pierre Cardin gold wrist watch which she identified as the
watch of the deceased.
She also went home and brought the container
of the said watch and both the watch and the container were handed in
as exhibits.
[13]
State then called D[....] M[....] M[....]2. She had been in the
employment of the deceased.
She was responsible for banking of money
but at times the deceased banked the money. On 29 March 2016 she was
on duty. She testified
that sometime that morning she, the first
state witness and the deceased were in the bedroom preparing orders
for liquor. When
she finished she went to the tavern to go and work.
[14]
While in the bottle store she saw M[....]3 and
other people passing next to the window towards the entrance
which is
restricted to employees only. A tall dark man armed with a knife then
entered the bottle store and closed her mouth with
a hand. That man
put a knife on her head. He then pushed her to the tavern. It is at
that stage that other man with a knife appeared
and another one
cocked a firearm. That man pointed the firearm at her. The said man
of the firearm was about 800cm from her. She
was able to see him
then.
[15]
She described the man of the firearm as being short, light in colour
and wearing all black clothing.
According to her he was wearing
something on his head which was part of the clothing he was wearing.
He had ‘bigger eyes’
according to her.
[16]
She testified that those men opened tills and took money. When those
men finished taking the
money they searched her and they took her
Samsung cell phone valued at R200.
[17]
Those men then directed her and M[....]3 to the house and upon
entering, the tall one rushed
to Ms M[....]1 with a knife. Ms
M[....]1 screamed after which the deceased asked what was happening.
No one responded. She and
M[....]3 were then ordered to lie
down on their stomachs in the sitting room. According to her the man
with the firearm and
the one who was unarmed went to the bedroom.
After those two men entered the bedroom, she heard two shots being
fired. The man
with the firearm came and demanded keys from her but
she told him she did not have them. He then demanded them from Ms
M[....]1.
They were then ordered to go to the bedroom of the
deceased. When they entered she saw the deceased lying naked on the
floor.
[18]
They were made to lie further on the ground. Those people left. She
stood up and went to cover the
naked body of the deceased with a
blanket. She testified that keys of the cars, and a Colt bakkie were
taken. After the incident
she checked the stock sheet and according
to her calculations an amount of R40 000 had gone missing.
[19]
She testified that on the 6 April 2016 she attended an identification
parade at Mangaung Police
station. At the parade aforesaid she
pointed the accused as the person who had a firearm in his possession
on the day of this incident.
She testified that she had never seen
the accused between the 29
March 2016 and 06 April 2016
when an identification parade was held. She further confirmed that
she was never assaulted or saw anyone
being assaulted.
[20]
In cross examination it was put to her that pictures of other
co-accused had appeared in the
newspapers. She testified that she did
not know if deceased had a firearm. She confirmed that she ones
attended court in the lower
court when the matter was on the roll.
[21]
State then led the evidence of Zolile Didi. On the 30 March 2016 he
was at his home in Bloemfontein.
A person known to whom as Tall, who
is renting from his neighbours passed and greeted him. Before Tall
could pass him completely
police appeared on the scene. When Tall saw
the police he(Tall) threw away a black cell phone.
[22]
The police stopped but before they could alight, Tall took out a
white cell phone and a watch
and he threw them away. The cell phone
landed in the neighbour’s yard and the watch landed on the roof
of the house of this
witness. Tall ran away but he was apprehended by
the police. The watch was recovered by the police on the roof of the
house of
the witness. It was a gold wrist watch. He identified
Exhibit 1, a Pierre Cardin gold wrist watch which was recovered on
his roof.
[23]
State then led the evidence of Captains Tshabalala, Skota and Mfazwe.
The three Captains are
all employed by the South African Police
Services and all three are attached to a unit called Directorate for
Priority Crime Investigation
(DPCI), commonly known as the Hawks.
They were part of a team which arrested the accused before court on
30 March 2017.Capt Tshabalala
testified that they had certain
information as a result of which they placed themselves at certain
strategic places in waiting.
They were with a certain Dira who had
called the accused in their presence for a meeting. It appears from
testimony that the accused
and this Dira had a prior arrangement to
meet on that day.
[24]
While so waiting they saw a Toyota Tazz motor vehicle coming along
the street but it took a turn
into another street. They gave chase
and the said motor vehicle was apprehended and the accused, and his
passenger were arrested.
That passenger was later released. Their
investigation led them to Phase 5. At Phase 5 they saw someone known
as Baningi Gxamza,
also known as Tall running away. While so running
away the said Gxamza threw away some items on the roof. They gave
chase and the
said Gxamza was arrested. Nothing much turns around the
evidence of both Captain Skota and Captain Mfazwe as in essence it
confirms
the evidence of Captain Tshabalala. The evidence of Mfazwe
is only further relevant in so far as the arrest and detention of the
accused is concerned. I deal with it in so far as it relates to the
relevance of the allegations of assault against the accused.
[25]
Accused through his Counsel made certain admissions in terms of
section 220 of the Criminal Procedure
Act pertaining to the chain
evidence as well as the identification parade. Thereafter the charge
sheet of the lower court in which
the accused and his former
co-accused appeared in the lower court was handed in, in terms of
section 235 of the CPA. The state
the closed its case.
[26]
The accused, Mr Ntsane Togowe, then testified in his defence and he
did not call witnesses. He
originally wanted to call Mr M[....]4 as a
witness but later chose to close his case without calling him. He
testified that on
the 30 March 2016 he was with one Baningi Gxamza,
also known as Tall and one Tebogo Mokgothu when he received a call on
his cell
phone. The said call was from the cell phone of one Dira.
When he answered a certain person introduced himself as a Captain of
the Hawks and that person asked the accused if he was Smith. Smith is
the nickname of the accused. He answered in the affirmative.
That
person then asked him to come to the place of Dira.
[27]
He obliged but before he could go he dropped Baningi Gxamza at his
place. He together with Tebogo
Mokgothu then drove to Dira’s
place. Upon arrival at the house of Dira before he could alight the
doors of his motor vehicle
were opened. He and Tebogo were pulled
outside and were assaulted by the police who demanded that they took
out the firearm he
used to shoot the deceased with. Police took him
to his house where they conducted a search but nothing was found.
Police confiscated
some of his clothing.
[28]
The essence of his defence is that on 29 March 2016 at about 9h00 he
and one of his friends went
to town to buy some physiotherapy
articles he used for his hands. After that they went to eat and he
only returned home after 14h00.
He denied ever being at the
deceased’s house on that day.
[29]
The main issue to be determined is whether the accused killed or was
one of the people who killed
the deceased and whether he was one of
the people who robbed M[....] M[....]1 and D[....] M[....]2. The
essence of the adjudication
of these issues turns on the reliability
of the evidence of identification.
[30]
I must comment at the onset that much time was spent on the events of
the 30
th
March 2016, the day after the incident, relating
to the alleged assault of the accused upon his arrest and later
detention and
further subsequent hospitalisation at National
Hospital. This matter could not even start on the first day as the
accused wanted
certain information at the lower court to prove, so I
am told, that he was indeed assaulted.
[31]
It is not the contention of the accused that any of his
constitutional rights were violated.
It is not his case that as a
result of the alleged assault on him by the police he made certain
adverse admissions, or a confession
or pointing out. It is in fact
his case that he did not even point out any of his former co-accused.
The accused is in fact not
asking this court to rule out any kind of
evidence as inadmissible. I am also of the considered view that no
evidence whatsoever
was led in violation of any rights of the accused
as contemplated in section 35(5) of the Constitution in respect of
the charges
he faces. The right of the accused to a fair trial was
not tainted.
[32]
Section 210 of the CPA provides that:
‘
No evidence
as to any fact, matter or thing shall be admissible which is
irrelevant, immaterial and which cannot conduce to prove
or disprove
any point or fact in criminal proceedings.’ (See also the
corresponding provision in section 2 of the Civil Proceedings
Evidence Act, 25 of 1965.)
[33]
In this case, this court is not sitting in adjudication of the
alleged assault of the accused
which apparently took place the day
following the date of this incident. That would be the function of
another forum. Proof of
the facts that have no bearing to the issues
before court cannot assist this court in adjudicating the matter and
issues before
it and those facts are accordingly irrelevant and thus
inadmissible. Although Mr Tshabalala cross examined at length on the
assault
of the accused upon his arrest, he also conceded that the
cross examination was irrelevant but pleaded with this court to allow
him to put the questions relating to the assault purely because he
was so instructed.
[34]
He was even at pains to ask the court to allow him to explain the
irrelevancy of the evidence
to the accused in the presence of Mr
Bontes when the accused was already in the witness stand and Mr
Tshabalala precluded from
consulting with him. With the same token,
the evidence of the detention of the accused as also testified by
Captain Mfazwe remains
irrelevant and thus inadmissible.
[35]
State bears the onus to prove its case beyond a reasonable doubt.
What is expected of an accused
person is to give a version which is
reasonably possibly true. When adjudicating the question of
identification this court is called
upon to approach that evidence
with caution. Our courts have emphasised that in matters of
identification, honesty and sincerity
and subjective assurance are
simply not enough. In addition, there must be certainty beyond a
reasonable doubt that the identification
is reliable, and it is
generally recognised that the evidence of identification based upon a
witness’s recollection or a
person’s appearance can be
‘dangerously unreliable’ and must be approached with
caution.
[1]
[36]
The state relied largely on the evidence of Mesdames M[....]1 and
M[....]2. These are the people
who were present when the incident
happened. Both the state and the defence are in agreement that both
were honest witnesses. On
the issue of identification, the confidence
and sincerity of the witness are not sufficient. The court in
S
v Mthetwa
[2]
cautioned as follows:
‘
Because of the
fallibility of human observation, the evidence of identification is
approached with some caution. It is not enough
for the identifying
witness to be honest: the reliability of his observation must also be
tested.’
[37]
The evidence of identification thus calls for close examination and
greater scrutiny. In
R
v Shekelele
[3]
the court said the following:
“
In all
cases that turn on identification the greatest care should be taken
to test the evidence. Witnesses should be asked by what
features,
marks or indications they identify the person whom they claim to
recognise. Questions relating to height, build, complexion,
what
clothing he was wearing and so on should be put. A bald statement
that the accused is the person who committed the crime is
not enough.
Such a statement unexplained, untested and uninvestigated, leaves the
door wide open for possibilities of mistakes.”
[38]
This incident happened in broad daylight. According to Ms M[....]1 it
was after 11h00 in the
morning. From the evidence of both. Ms
M[....]1 and Ms M[....]2 there doesn’t seem to have been any
impediment to visibility.
Ms M[....]1 testified that after two shots
were fired from the bedroom the accused and another person exited the
bedroom. The accused
asked her for the keys to the safe. According to
her, at that stage she did not have a good look at the accused. It is
her testimony
that after she handed the accused the keys to the safe
the latter struggled to open the safe. According to her the accused
was
shaking visibly and was unable to open the safe. It is at that
stage that she observed the face of the accused. She was less than
a
metre from him when she made this observation. The face of the
accused was not covered although the accused had a hat which covered
her ears.
[39]
Her testimony is that she observed the facial features of the accused
on two occasions. Firstly,
when the accused was in the bathroom and
secondly, when he tried to open the safe. She described the
discoloration on the cheek
of the accused. During the identification
parade, the SAP329 form, depicting the proceedings which was admitted
by agreement, the
accused when asked if he was satisfied with the
parade, including the persons on the parade raised, inter alia, a
concern which
was noted that he had a mark on his left cheek. During
the trial Ms M[....]1 also referred to the said discoloration which
was
still visible during the trial about a year later. She further
referred to her particular type of eyes in order to assert that she
was not making a mistake.
[40]
Speculations were put to her that it was likely that she saw the
accused in court when he appeared
in the lower court during
proceedings in that court but she denied that vehemently. In my view
her observation was reliable credible
and nothing could be pointed to
any deficiency in that regard.
[41]
Ms M[....]2 corroborates the evidence of Ms M[....]1 in material
respect with regard to the evidence
of identification. According to
her she was in the bottle store when the accused entered with another
person. The accused was armed
with the firearm. The accused, cocked
the firearm and pointed same to her. She was at that stage bout 800
metres from her. It is
clear that the accused was within a visible
distance from her. She described the accused as having ‘bigger
eyes’ while
Ms M[....]1 described the accused as having what
she called ‘angry eyes’. From the description by both the
witnesses
it certainly shows that his eyes stood out as some kind of
a feature that could not escape attention.
[42]
She further described his clothing and this corroborated the evidence
of Ms M[....]1 that the
accused was dressed in black clothing. I must
however point out the discrepancy in what the accused wore on his
head. According
to Ms M[....]1 the accused had a hat on which covered
the ears. On the other hand, Ms M[....]2testified that the accused
had a
hoody on his head and not a hat. This contradiction is in my
view irrelevant as both witnesses are adamant that the accused’s
face was not covered and both could see his face clearly. Like Ms
M[....]1 this witness was sincere and honest. Over and above,
her
observation was credible and reliable. Nothing can be pointed to
discredit her observation. She also attended and pointed the
accused
during the scheduled identification parade.
[43]
She confirmed that at some stage she attended the proceedings of the
accused and his former co-accused
in the lower court. She, however,
of importance testified that from the date of the incident, 29 March
2016 to 6 April 2016 when
the identification parade was held, she
never saw the accused before court. It follows therefore, and this
she confirmed in evidence,
that her attendance of the proceedings in
the lower court was post the identification parade. Her
identification of the accused
at the identification parade was
therefore not influenced in any way by any attendance at court. Her
attendance at court after
the identification parade is a non-factor.
She conceded further that she saw the accused in the newspapers. This
factor is also
a neutral factor in that she also saw the accused in
the newspaper after the identification parade. Even if it could be
said that
the witness saw the accused in the newspaper before the
identification parade, that factor wold still require to be weighed
with
the conspectus of all the evidence. Such a factor is not
necessarily ipso facto fatal.
[44]
Notwithstanding the fact that the court finds that the identification
of the accused by Ms M[....]1
and Ms M[....]2is reliable this court
is still obliged to evaluate the defence of alibi of the accused.
[45]
The accused denies being on the scene of this crime. He thus raises
the defence of alibi. The
court in
Thebus
and Another v S
[4]
quoted with approval the peculiarity of the defence of alibi as
explained in
R
v Cleghorn
[5]
as follows:
‘…
there
is good reason to look at alibi evidence with care. It is a defence
entirely divorced from the main factual issue surrounding
the corpus
delicti, as it rests upon extraneous facts, not arising from the res
gestae. The essential facts of the alleged crime
may well be to a
large extent incontrovertible, leaving but limited room for manoeuvre
whether the defendant be innocent or guilty.
Alibi defence, by its
very nature, takes the focus right away from the area of the main
facts, and gives the defence a fresh and
untrammelled start. It is
easy to prepare perjured evidence to support it in advance.’
[46]
It is settled law that there is no onus on the accused person to
establish his alibi. The fact
that he did not call M[....]4 as his
alibi witness as indicated above cannot be held against him. If his
alibi is reasonably possibly
true, the accused must be acquitted. The
alibi of the accused must be weighed against the totality of the
evidence. The approach
in the evaluation of defence of alibi was
stated as follows in
Rv
Hlongwane
[6]
:
‘
At
the conclusion of the whole case the issues were: (a) whether the
alibi might be reasonably true and (b) whether denial of complicity
might be reasonably be true. An affirmative answer to either (a) or
(b) would mean that the Crown has failed to prove beyond a
reasonable
doubt that the accused was one of the robbers.’
It thus stands to
reason that if the defence of alibi raised by the accused is
reasonably possibly true, he is entitled to an acquittal
.
[47]
The state attacked the credibility of the accused during cross
examination. With regard to why
the two witnesses for the state
identified the accused at the identification parade he testified that
Ms M[....]1 might have seen
him during the parade. What is puzzling
is that the accused who had at all relevant times throughout the
proceedings gave instructions
to his Counsel conveniently did not
inform his Counsel that Ms M[....]1 might have seen him outside
before she entered the identification
parade. It became clear that he
was only speculating without any factual basis.
[48]
He further asserted that Ms M[....]1 might have
seen his mark on the face during the identification parade,
that is
why she pointed him. He however conceded later that M[....] was far
and could not have seen the mark on his cheek. Of importance
he
testified that Ms M[....]1 was told by the police that she must point
at the person who had a mark. This version was never put
to any of
the state witnesses. Despite this assertion that the police told Ms
M[....]1 to point him at the parade, he was unable
to say or describe
the police official who might have given such instructions to the
said witness. In re-examination by his Counsel
he insisted that the
police told Ms M[....]1 to point him. This was false as it had no
basis. He also conceded that he was not
present when the police
allegedly told Ms M[....]1 to point her.
[49]
In my view the totality of the evidence and the probabilities favour
the version of the state.
If one were to have regard to the testimony
of the two ladies as to the identity of the accused; the three
Captains who went to
arrest Mr Baningi Gxamza as well as the finding
of the Pierre Cardin watch of the deceased; the fact that according
to the police
the accused led them to Mr Gxamza, it is my considered
view that the accused’s alibi is false beyond any reasonable
doubt
and ought to be rejected. I accordingly find that the accused
was one of the robbers who were at the premises of the late Mr Helepi
on 29 March 2016.
[50]
It is undisputed that the deceased was shot two times and died of a
‘
gunshot wound of the chest’
according to the post
mortem report admitted in evidence. The evidence reveal that the
accused was the only one holding the firearm
when he entered the
bedroom of the deceased. Two shots were find almost immediately after
entering the bedroom of the deceased
and at almost equally the same
time he exited still holding the firearm demanding the keys from the
two ladies’ wo testified
in these proceedings. In my view the
only reasonable inference to be drawn in these set of facts is that
the accused is the person
who shot and killed the deceased.
[51]
It is further undisputed that certain items like money, car keys,
cell phones, a firearm and
a motor vehicle were unlawfully
appropriated during this incident. Except a firearm which was taken
by the accused it is unclear
as to who took what. What is however
important to bear in mind is that the accused and two others entered
the premises of the deceased
with the intent to rob him.
[52]
The evidence reveal that when they entered the premises they were
armed with a firearm and a
knife. In my view it cannot be argued
otherwise that the said three people did appreciate the possibility
that anyone offering
resistance in the robbery could be met with
violence and even death. The conduct of the three brought them within
the realm of
the doctrine of common purpose.
[53]
Burchell
and Milton
[7]
defines common purpose as follows:
‘
Where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible
for the specific
criminal conduct committed by one of their number which falls within
their common design. Liability arises from
their ‘common
purpose’ to commit the crime.’
[54]
The accused participated in the activities of the group willingly and
thus signified his acceptance
of the eventuality which later ensued.
The eventuality became real when the deceased was fatally wounded.
The accused thus associated
himself with the killing of the deceased
as well as the forceful unlawful appropriation of the property of the
deceased and of
Ms M[....]1 and Ms M[....]2. He thus made himself
guilty of the offences preferred against him. I am satisfied that the
state succeeded
in proving its case beyond a reasonable doubt and his
version ought to be rejected. I accordingly make the following order:
ORDER
1. The
accused is found guilty of murder read with the provisions of
s51(1)
of the
Criminal Law Amendment Act 105 of 1997
;
2. The
accused is found guilty of robbery with aggravating circumstances
read with the provisions of
section 51(2)
of the
Criminal Law
Amendment Act 105 of 1997
.
P
MOLITSOANE, J
On
behalf of applicant:
Adv Bontes
Instructed
by:
The Director of Public Prosecutions
3rd
Floor
Waterfall
Centre
BLOEMFONTEIN
On
behalf of respondent:
Adv. Tshabalala
Adv
Abrahams
Instructed
by
Bloemfontein Justice Centre
Southern
Life Plaza Building
41
Charlotte Maxeke Street
BLOEMFONTEIN
[1]
D Zeffert AP Paizes and A St Q Skeen - The South African Law of
Evidence (2003) page 142.
[2]
1972 (3) SA766 (A) page 768 A-B.
[3]
1953 (1) SA 636
(TPD) at 63 G-H.
[4]
(CCT36/02)
[2003] ZACC 12.
[5]
100 CCC (3d) 193.
[6]
1959 (
[7]
Principles
of Criminal law,Juta 3rd ed at 574.