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[2011] ZASCA 121
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Scott and Others v S (473/10) [2011] ZASCA 121 (31 August 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 473/10
In the matter between:
LES FLOYD SCOTT
…..................................................................
First
Appellant
LAWRENCE BEATON
…..........................................................
Second
Appellant
JEREMY BEATON
…...................................................................
Third
Appellant
and
THE STATE
….......................................................................................
Respondent
Neutral citation
:
Scott v The State
(473/10)
[2011]
ZASCA 121
(31 August 2011)
Coram:
HEHER, MAYA and MAJIEDT JJA
Heard:
25 May 2011
Delivered:
31 August 2011
Summary:
Criminal law – doctrine of common
purpose – whether appellants’ guilt proved beyond
reasonable doubt.
___________________________________________________________________
ORDER
On appeal from:
KwaZulu-Natal
High Court, Pietermaritzburg (Gorven J and Luthuli AJ sitting as
court of appeal):
In the result the following order is made:
The first appellant’s appeal against his convictions is
dismissed.
Save as set out below, the first appellant’s appeal against
sentence is refused.
The second and third appellants’ appeals against their
convictions and sentences are upheld.
The order of the court below is varied as follows:
‘
1 The sentences imposed against accused
number 1 shall run concurrently.
2 Accused numbers 3 and 4 are found not guilty on all counts.’
_____________________________________________________________________
JUDGMENT
__________________________________________________________________
MAYA JA (HEHER AND MAJIEDT JJA concurring):
[1] The appellants together with their co-accused, Mr Praveen Singh
(Singh), appeared in the Durban Regional Court facing (Mr W.F
Hahn)
charges of the murder of Mr Franktel Mostert (the deceased) and the
attempted murder of Mr Conrad Cornelius Meyer (Conrad).
They were all
convicted as charged. The first appellant and Singh were sentenced to
undergo 15 years imprisonment on the count
of murder and seven years
imprisonment on the count of attempted murder. The second and third
appellants, who are brothers, were
sentenced to undergo seven years
imprisonment on each count. Their sentences were, however, ordered to
run concurrently. The appellants’
appeal to the KwaZulu-Natal
High Court (Gorven J and Luthuli AJ) against their convictions and
sentences was unsuccessful. The
present appeal is with the leave of
the court below granted in February 2009.
[2] At the commencement of the hearing before us, the first
appellant’s local attorney, Mr van Vuuren, applied from the bar
for a postponement of the matter on the basis that his client had not
been able to raise sufficient funds to engage counsel of
his choice
to represent him in court. Mr van Vuuren had received instructions
from his instructing colleague in Durban on the preceding
day. The
first appellant, who also had not filed heads of argument, had been
notified of the date of hearing about six weeks in
advance and had
rejected his attorneys’ advice to apply for legal aid. After
some anxious consideration, we refused the application
and ordered
the hearing to proceed.
[3] Whilst a court will generally be slow to refuse a postponement
because of the adverse consequences which may arise, a litigant
who
seeks this indulgence must nonetheless satisfy the court fully that
it should condone his non-preparedness. This, in my view,
the first
appellant dismally failed to do. As I have indicated, more than two
years had passed since leave to appeal was granted,
no explanatory
affidavit has been forthcoming from the first appellant and his
verbal instructions to Mr van Vuuren are lacking
in any persuasion.
[4] Quite apart from his failure to adequately explain his
eleventh-hour bid to delay the proceedings and his refusal to heed
his attorneys’ counsel to obtain legal aid, there are other
compelling factors to be considered. These include the undue lapse
of
time from the commencement of the criminal proceedings and the
resultant prejudice to the other parties if the matter was protracted
further. As rightly emphasized by State counsel who strenuously
opposed the postponement application, the case has dragged on for
an
entire decade and finality is long overdue for all concerned. This is
particularly so for the family of the deceased who have
carried the
burden of the loss of their young son without the comfort of closure
for so long and had travelled a long distance
to attend the appeal
hearing. Furthermore, the comprehensive nature of the appeal record,
which included the legal representatives’
addresses at the
various stages of the proceedings and the full judgments of the trial
court and the court below (in two sets of
proceedings in which the
first appellant was legally represented and the merits of the case
were fully ventilated and determined)
convinced us that we could,
with no undue risk to the first appellant’s interests, fairly
adjudicate the appeal, without
the additional benefit of his
submissions.
[5] I turn to deal with the merits of the appeal. It is necessary to
set out the factual background in some detail. During the
evening of
30 September 2001 Conrad’s parents hosted a ‘braai’
at their home for a few family members and friends.
Among those
present were Annike van Rooyen, a female identified only as Lindy and
the deceased who was Conrad’s close childhood
friend. Around
midnight Conrad, his mother Lida Susara Meyer (Mrs Meyer), Lindy,
Annike and the deceased, left the premises to
buy soft drinks at a
nearby shop. Mrs Meyer and the deceased had consumed a little brandy
but Conrad, a teetotaller who was only
17 years old at the time, had
not consumed any liquor.
[6] The tragic events which culminated in the deceased’s death
and Conrad’s nearly fatal injuries from stab wounds
occurred on
their way back from this jaunt. Nearby Hillary Spar Supermarket on
Stella Road, Conrad’s party encountered the
appellant (19) and
second and third appellants (19 and 17 respectively) described as
‘coloured’ and Singh (20) described
as ‘Indian’,
standing in the road with two white males who did not appear to be
part of the group. One of the whites
was bleeding profusely from the
face and was being pushed and insulted by the appellant’s
group, some of whom directed racial
insults at Conrad’s party.
In reaction, Conrad and the deceased crossed the road and approached
the group to confront them,
leaving the womenfolk on the other side
of the street.
[7] The course of events from that point differs markedly between the
respective versions adduced by the State and the defence.
According
to Conrad (corroborated in large part by his mother) who testified
for the State, the trouble started when the deceased
asked the
bleeding man why they had sworn at them. The third appellant swung a
beer bottle at the deceased’s head. The bottle
hit the ground
and broke. In retaliation, Conrad threw the third appellant to the
ground and pinned him down by putting a foot
on his chest. Mrs Meyer
then crossed the street to fetch Conrad and the deceased. She kicked
the third appellant in the ribs as
he tried to rise.
[8] Conrad, the deceased and Mrs Meyer crossed the road and rejoined
the two women. At that stage, Annike noticed blood on the
back of
Conrad’s shirt which turned out to be coming from a stab wound
he had not felt being inflicted. (In evidence he guessed
that he had
been struck by the third appellant with the broken bottle during
their tussle.) The appellants had followed them and
as Conrad turned
round to face them, Singh stabbed him above the right collarbone.
Conrad pushed Singh away ripping the latter’s
shirt in the
process. At that moment he saw the first appellant, at ‘arm’s
length’ away from him, make a stabbing
motion with his right
hand from an upward angle downwards at the deceased’s chest.
The deceased pulled a dark object out
of his chest and threw it at
the appellants who then ran away. As Conrad and the deceased left the
scene both collapsed. The deceased
shortly died from a penetrating
incised wound into the right ventricle of the heart. Conrad was
conveyed to hospital where he was
treated in the Intensive Care Unit
for four days. Conrad had sustained two stab wounds – described
by Dr Ogg, who examined
him, as stab wounds of the anterior chest
above the right nipple and of the posterior chest over the right
scapula resulting in
a punctured lung.
[9] Mrs Meyer explained that she crossed the street to fetch Conrad
and the deceased. She saw the second appellant attack Conrad
from the
side as he pinned down the third appellant who was trying to get up.
She stated that she kicked the third appellant to
keep him on the
ground and that the second appellant then threw a bottle at her from
which she was saved by the deceased who moved
her out of its path.
She did not see who stabbed Conrad but did observe the first
appellant stab the deceased, who stood next to
her, in the chest with
a dark object.
[10] Another witness called by the State, Mr Mzimela, told how he
observed what appeared to be a fight as he drove along Stella
Road on
his way to drop off friends who lived in that neighbourhood. The area
was well-lit by streetlights – a fact which
had been mentioned
by Conrad and his mother without contestation – and he was
driving very slowly because of the nature of
the road. The spectacle
engaged his attention and he kept watching the scene from the
rear-view mirror as he drove past. He and
his passengers had noticed
the biggest male in the group, who he identified as the first
appellant, and they discussed him as they
drove on. At a distance of
about 30 metres away from the scene he realised that the fight was
getting serious as he saw the first
appellant raising his hand and
make a stabbing motion towards a white male. He turned back to the
scene to assist. This took some
time as he was followed by other
traffic and he found Mrs Meyer cradling the deceased who was severely
injured. She informed him
that the deceased had been stabbed by a man
who ran down the road. He telephoned the police and gave chase. He
saw the first appellant
struggling up a hill assisted by others, but
they disappeared into the neighbouring houses before he could catch
them.
[11] The defence version as told by the first appellant and Mr Trevor
Lubbe who he called as his eyewitness – Singh and the
second
and third appellants did not testify – is different. They both
attributed the deceased’s stabbing to Singh who,
in his plea
explanation, had actually admitted to stabbing the deceased in
self-defence. According to the first appellant his group
was walking
home from a tavern and came across one Seun fighting with one
Patrick. They intervened and stopped the fight. Seun
went into a
nearby bar and returned with Lubbe. Seun then demanded a ‘fair
fight’ with Patrick who obliged and then
overpowered him. Lubbe
intervened and Patrick left. The group walked on until they met
Conrad’s party at which Seun swore.
A woman in that party said
they should be assaulted.
[12] According to the first appellant, the deceased crossed the
street and argued with Seun but Lubbe intervened successfully.
The
deceased then attacked the third appellant for no apparent reason and
also punched him, Singh and the second appellant. He
punched the
deceased back. Conrad then joined in and trampled on the third
appellant. Beer bottles were thrown around and broke
on the ground.
But the fight ended and the deceased left. Seun began swearing at the
deceased again and then, together with Singh,
chased him across the
road. The deceased turned back and ran towards them. They met in the
middle of the road and the deceased
tried to hit Singh who then
stabbed him in the chest with a knife. The deceased pulled it out of
his chest and threw it at Singh.
Lubbe picked it up and they all fled
the scene.
[13] Lubbe’s version mostly matched the first appellant’s.
On his account the deceased assaulted the third appellant
because the
latter made an inflammatory utterance as the deceased walked away
after Lubbe had stopped his argument with Seun. He
picked up the
knife used by Singh to stab the deceased after the latter threw it
away and gave it to Singh on his insistence. He
last saw the deceased
running down the road before he left the scene with his group.
[14] Dr Bana, a pathologist and State witness who conducted the
post-mortem examination on the deceased, discounted any possibility
that the fatal chest wound could have been inflicted by Singh. It was
suggested to her (and, earlier, to Conrad) by Singh’s
attorney
in cross-examination that the deceased was stabbed accidentally when
he ran into the knife held by Singh. Dr Bana’s
opinion was
based on the protagonists’ disparate body types (on her
description, the deceased was big, muscular and tall
whereas Singh
had a small build), the degree of force used in inflicting the wound
which cut through the breastbone, and the path
of the wound.
[15] The magistrate accepted the version of the State witnesses whom
he found satisfactory. He dismissed the first stage of the
fight,
which occurred on the appellant’s side of the road, as trivial
and refused to infer that it was the third appellant
who stabbed
Conrad in the back at that stage in view of the patchy evidence in
that regard. However, the magistrate found that
by chasing Conrad and
the deceased across the road, Singh and the appellants manifested a
common purpose and actively associated
themselves with the assaults
on Conrad and the deceased. Moreover the second and third appellants
had done nothing to prevent the
stabbing of the deceased and Conrad,
had left the scene together with Singh and the first appellant and
had failed to testify.
[16] The magistrate rejected the version that the deceased was
stabbed by Singh. He mentioned that when Singh was granted an
opportunity
to lead evidence in his defence, he stood, apparently
against his attorney’s instructions, and muttered that he
wanted to
tell the truth. The proceedings were adjourned to give him
and his attorney time to regroup. It later transpired that during
that
adjournment the first appellant who, unlike Singh, was out on
bail followed the latter to the police cells. On his return to court
Singh closed his case without testifying. The magistrate found this
incident odd and the judgment suggests that he suspected the
first
appellant to have influenced Singh to exculpate him. Nonetheless, the
magistrate concluded that Singh probably mistook the
identity of his
victim and thought that he stabbed the deceased whereas he stabbed
Conrad, which he did not gainsay.
[17] The magistrate then applied the doctrine of common purpose and
convicted the appellants and Singh for the murder and attempted
murder on that basis. In determining sentence the magistrate found
that the second and third appellants had played a lesser role
in the
commission of the offences and for that reason, imposed more lenient
sentences on them. On appeal, the court below found
that the
magistrate did not misdirect himself in any way and confirmed the
convictions and sentences.
[18] The issues raised in the appeal before us concerned (a) the
identity of the person who stabbed the deceased; (b) whether the
State established the existence of a common purpose and intent to
commit the offences; and (c) the propriety of the sentences imposed
by the magistrate.
[19] Regarding the deceased’s stabbing, it was not in dispute
that visibility at the scene of the offences was good. I find
it
highly unlikely in the circumstances that Mzimela, the independent
witness and passing Samaritan who observed the fight from
no more
than 30 metres away and Conrad and his mother, who were right at the
scene, could all confuse the first appellant, undisputedly
the
biggest person there, with the slightly built Singh as the person who
inflicted the stab wound. It is the very stabbing motion
made by the
‘big man’ which Mzimela saw that prompted him to turn
back and it is improbable that he would mistake that
with a fist
fight as was suggested by the defence. In any event, according to the
witnesses, the fist fight occurred only on the
other side of the road
during the first round of the fight and not where Mzimela observed
the incident.
[20] As indicated above, Dr Bana rejected the likelihood that the
deceased was stabbed by Singh or that he could have impaled himself
on the knife-blade. In her opinion, that would have required the
deceased to run a distance with considerable speed, generating
severe
force, in order for the knife to go all the way through the
breastbone. She concluded as follows:
‘
I’m just looking at
[Singh], and I have obviously done the autopsy, and the deceased is
quite a big, muscular, tall person
and for him to run towards a knife
held by a small built, average height person . . . he would have to
run at great speed . . .
and I would expect then expect that knife
wound to be much lower down, more likely to be more thoracic and an
abdominal wound rather
than high up there on the chest’.
I see no reason to disturb the credibility findings made by the
magistrate regarding the State eyewitnesses who implicated the
first
appellant and, in my view, on a consideration of all the relevant
evidence and the inherent probabilities, their evidence
coupled with
that given by Dr Bana established it beyond doubt that Singh did not
stab the deceased.
[21] The nature of the fatal wound itself leaves no doubt that
whoever stabbed the deceased intended to kill him. Dr Bana described
it as a ‘wound which passed from the right going down towards
the back . . . through the breastbone . . . through the sac
that
covers the heart [and] through the right chamber of the heart’
indicating a downward thrust inflicted probably with
a knife with ‘a
considerable amount of force . . . because the knife went through the
breastbone itself which is quite a
strong bone to break’. It is
inconceivable that anyone, least of all the person who inflicted it,
would believe that any
human being could survive such an injury. I
would accordingly confirm the first appellant’s conviction for
the deceased’s
murder.
[22] As to the appellants’ culpability or otherwise for the
attempt on Conrad’s life by Singh and the second and third
appellants’ guilt or otherwise for both offences on the basis
of the doctrine of common purpose which the magistrate applied,
it is
necessary to consider their individual conduct to determine whether
there is a sufficient basis for holding that each one
of them is
liable, on the ground of active participation in the achievement of a
common purpose that developed at the scene. (See
S v Le Roux
(444/08)[2010] ZASCA 7;
2010 (2) SACR 11
(SCA) at 19e;
S v Mgedezi
1989 (1) SA 687
(A) at 703B-I.)
[23] In the absence of proof of a prior agreement to commit the
offences, as here, the appellants can be convicted on the basis
of
the doctrine of common purpose, if (a) they were present where the
violence was being committed; (b) they were aware of the
assault on
Conrad and the deceased; (c) they intended to make common cause with
the perpetrator(s) of the assault; (d) they manifested
their sharing
of a common purpose with the perpetrator(s) of the assault by
themselves performing some act of association with
the conduct of the
perpetrator(s); and (e) they had the requisite
mens rea
concerning the unlawful outcome at the time the offence was
committed, ie intended the criminal result or foresaw the possibility
of the criminal result ensuing and nevertheless actively associated
themselves reckless as to whether the result was to ensue.
(See
S
v Safatsa
1988 (1) SA 868
(A);
S v Mgedezi
above at
705I-706C;
S v Thebus
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) para 49.)
[24] I have no difficulty, on an application of these requirements,
in confirming the first appellant’s conviction in respect
of
the count of the attempted murder. He pursued Conrad and the deceased
after the first round of the fight ended and the two men
had left
them and instigated a fresh, unprovoked attack against them.
According to Conrad and his mother, Conrad was next to the
deceased
and the first appellant when Singh stabbed him. The first appellant,
of necessity, must have seen this assault. Instead
of dissociating
himself from Singh’s violent conduct, he proceeded to stab
Conrad’s companion. In my view, by so acting
he manifestly
associated himself with Singh’s behaviour and cannot have been
in any doubt that their victims would be seriously
injured or even
killed, as indeed happened.
[25] The case of the second and third appellants is, however,
different. There is no evidence whatsoever that they were armed –
apart from the beer bottle which the third appellant earlier threw at
the deceased – or knew that Singh and the first appellant
were
armed with deadly weapons before the stabbings occurred. The first
stage of the fight was largely fisticuffs and, according
to Conrad,
the bottle used contained beer someone obviously intended to consume
and was not carried as a weapon. I favour the magistrate’s
view
not to attach any significance to this round of the events (which the
victims aided to spark by crossing the road to confront
a bunch of
rowdy and aggressive males who Conrad himself said appeared drunk)
and Conrad’s back wound in the light of his
own uncertainly as
to how and where he sustained it.
[26] The only evidence against the two appellants in relation to the
second stage of the fight is that they were part of the group
which
followed Conrad and the deceased. No one saw them do or say anything
thereafter that indicated an intent to associate themselves
with the
stabbings. They did not approach the victims and fled the scene
immediately after the assault. To my mind, it is not at
all
far-fetched that they envisaged nothing more than a continuation of
the fist fight. There is simply no basis to conclude that
they
intended the stabbing of Conrad and the deceased and made common
cause therewith. And, in that case, they had no evidentiary
burden to
discharge ie that they dissociated themselves from the commission of
the offences and they certainly did not have to
testify. They should,
therefore, not have been convicted for these offences.
[27] It remains to determine whether the sentences imposed by the
magistrate on the first appellant are appropriate. The record
shows
that his youthful age – he was 20 years old at the material
time – and clean record were taken into account and
that the
magistrate cautioned himself against ever-emphasizing the sentencing
element of deterrence. The magistrate, however, determined
that the
seriousness of the offences perpetrated against unarmed victims who
did not provoke the assailants and posed no threat
to them justified
the custodial sentences he imposed. It is so that the first appellant
was convicted of very grave offences which
warranted the imposition
of substantial custodial sentences. A young man with a bright future
ahead of him – the deceased’s
father described him as a
well-loved, very good rugby player with a real prospect at joining
the sport at provincial level, who
had just turned 21 and was due to
start a new job – lost his life in a senseless crime and it is
a miracle that Conrad survived.
In cases of this nature society
demands punishment that reflects its outrage at the intolerable level
of violence which is ravaging
our country.
[28] Be that as it may however, mindful also that sentencing is
pre-eminently a matter for the trial court’s discretion which
is not to be interfered with by a court of appeal unless unreasonably
exercised, I consider the cumulative effect of the sentences
imposed
by the magistrate, which add up to 22 years imprisonment,
disturbingly inappropriate and unduly severe in the circumstances.
It
does not appear to me that the magistrate took proper account of the
first appellant’s youth and capacity for reform.
Ordering the
sentences to run concurrently would, in my opinion, adequately serve
the objects of sentencing by addressing the elements
of retribution
and deterrence whilst affording the first appellant some modicum of
mercy and an opportunity for rehabilitation.
This court is entitled
to interfere in the circumstances and the sentences should run
concurrently.
[29] In the result, the following order is made:
1 The first appellant’s appeal against his convictions is
dismissed.
2 Save as set out below, the first appellant’s appeal against
sentence is refused.
3 The second and third appellants’ appeals against their
convictions and sentences are upheld.
4 The order of the court below is varied as follows:
‘
1 The sentences imposed against accused
number 1 shall run concurrently.
2 Accused numbers 3 and 4 are found not guilty on all counts.’
____________________
MML MAYA
Judge of Appeal
APPEARANCES
FOR FIRST APPELLANT
:
Van Vuuren
Instructed by: Mthembu & Van Vuuren Attorneys
Bloemfontein.
FOR SECOND AND THIRD
APPELLANTS: SB Mngadi
Instructed by: Durban Justice Centre, Durban
Bloemfontein Justice Centre, Bloemfontein
FOR RESPONDENT
:
N Moosa
Director of Public Prosecutions, Pietermaritzburg
Director of Public Prosecutions, Bloemfontein