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[2022] ZAMPMBHC 64
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S v Ratau (CC46/2013) [2022] ZAMPMBHC 64; 2023 (2) SACR 40 (MM) (1 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT)
Case
Number: CC 46/2013
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
1
August 2022
In
the matter between:
THE
STATE
and
JOHANNES
WALTER RATAU
Accused
JUDGMENT
Roelofse
AJ:
[1]
A robber’s
accomplice is shot and killed by one of the robbers’ victims
during an attempted robbery. I have to decide
in this matter whether
the robber is guilty of the premeditated murder of his accomplice.
This judgment finds that the robber is
guilty of the premeditated
murder of the accomplice.
Summary
of the State’s case
[2]
The
State alleges that the accused (Mr Johannes Walter Ratau) and Mr Tony
Lipson Madutela (the deceased) was being detained by the
Police and
being conveyed by Sergeant Lebone Walter Makhufola (Sergeant
Makafola) and Ms Ngakwana Sarena Boloka (Ms Boloka)
[1]
in a minibus from Sekhukune to Mbombela.
[3]
On route to
Mbombela, the deceased attempted to rob Sergeant Makhufola of his
service pistol. At the same time, Mr Ratau also attacked
Ms Boloka
and also attempted to rob her of her service pistol. Sergeant
Makhufola shot and killed the deceased during the attempted
robbery.
For the conviction of Mr Ratau, the State relies upon the doctrine of
common purpose.
The
charges and plea
[4]
Mr
Ratau stands trial before this court on charges of attempted robbery
(Count1) and premeditated murder
[2]
(Count 2).
[5]
Mr Ratau pleaded not
guilty to both counts. In his plea explanation, Mr Ratau said that he
did not attempt to rob the police officers
of their firearms and he
did not murder the deceased.
[6]
Mr Ratau made
admissions in terms of section 220 of the Criminal procedure act 51
of 1977. The State also, by agreement between
it and Mr Ratau, handed
in the report of the post mortem that was conducted upon of the
deceased and a photo album which shows
the scene of the crime. The
post mortem report confirms that the deceased died as a result of a
gunshot wound. This evidential
material was not disputed by the
deceased and was admitted into evidence.
[7]
The only dispute
remaining to be resolved between the State and Mr Ratau was whether
the accused attempted to rob the police officers
of their firearms;
whether Mr Ratau is guilty of murdering the deceased; and whether the
murder was premeditated.
The
evidence
[8]
The State relied
upon at the evidence of the two police officers, Sergeant Lebone
Walter Makhufola and Ms Boloka.
Sergeant
Lebone Walter Makhufola
[9]
Sergeant Makhafola
is based at the detective branch at the Sekhukune police station. He
was on duty on 23 August 2012 and was requested
to transport Mr Ratau
and the deceased from Sekhukune to Mbombela in a minibus.
[10]
The deceased and Mr
Ratau was seated in last row of the minibus. Ms Boloka was seated in
the second row from the back, just in front
to the deceased and Mr
Ratau. Sergeant Makhafola was the driver of the minibus.
[11]
On the road between
Sabie and Mbombela, Sergeant Makhafola heard a commotion at the back
of the minibus. Sergeant Makhafola saw
Mr Ratau leaning over Ms
Bolka’s seat. The next moment Sergeant Makhafola saw the
deceased next to him. The deceased grabbed
hold of the minibuses’
steering wheel. Sergeant Makhafola fought with the deceased to remain
in control of the steering wheel.
A struggle ensued between the
deceased and Sergeant Makhafola. At some stage the minibus came
to a standstill and crawled
backwards were after it stopped against a
tree stump.
[12]
The struggle between
Sergeant Makhafola and of the deceased continued. The deceased
attempted to take Sergeant Makhafola’s
service pistol. Sergeant
Makhafola prevented this from happening and succeeded to get the
pistol from its holster. Sergeant Makhafola
the warned the deceased
that he would shoot him if he did not stop the attack. The deceased
continued with his attack. Sergeant
Makhafola fired a warning shot
which penetrated the minibuses’ roof. The bullet missed the
deceased. The deceased continued
with his attack upon Sergeant
Makhafola. Sergeant Makhafola fired another shot. The bullet hit the
deceased penetrating the deceased’s
heart. The deceased fell
down. Sergeant Makhafola saw that the deceased made no further
movements.
[13]
At that stage the
struggle between Mr Ratau and Ms Boloka was continuing. Sergeant
Makhafola managed to get out of the passenger
door next to the driver
seat and entered the big sliding door of the minibus. Sergeant
Makhafola pointed his fire arm at Mr Ratau.
Mr Ratau immediately
ceased his attack on Ms Boloka and held his two arms over his head
appearing to be shielding himself from
a possible gun shot.
[14]
Sergeant Makhafola
testified that the deceased and Mr Ratauthe were cuffed to each other
with a chain that was cuffed to one of
each other’s ankles. The
chain between the cuffs was approximately 600 mm long.
[15]
Sergeant Makhafola
reported the incident to his superiors. Members of the Sabie police
station arrived and took control of the crime
scene.
[16]
Under cross
examination Sergeant Makhafola was challenged on the likelihood that
the deceased could have reached Sergeant Makhafola
at the drivers’
seat while the deceased and Mr Ratau were chained together. Sergeant
Makhafola’s response was that
it was possible because the
deceased pulled him from the drivers’ seat. Sergeant Makhafola
ended up at behind the driver’s
seat of the minibus in the
struggle. In addition, Sergeant Makhafola testified that if the
deceased and Mr Ratau’s legs were
stretched while attached to
the ankle chain and therefore it was possible for the deceased to
reach Sergeant Makhafola where he
was seated while Mr Ratau was
fighting Ms Boloka.
[17]
It was put to
Sergeant Makhafola that Mr Ratau’s version would be that he
never attacked Ms Boloka and that he was only in
handcuffs and not
chained by his ankle to the deceased. This Sergeant Makhafola denied.
Sergeant Makhafola referred to the photo
album of the crime scene
where it can be clearly seen that Mr Ratau was chained to the
deceased. Upon this response, it was put
to Sergeant Makhafola that
it would be Mr Ratau’s version that he was chained to the
deceased after the deceased was shot.
This Sergeant Makhafola denied.
Ms
Boloka
[18]
Ms
Boloka testified that she was with Sergeant Makhofola when they
conveyed Mr Ratau and the deceased. Ms Boloka confirmed Sergeant
Makhafola’s evidence over the positions where she, the
deceased, Mr Ratau and Sergeant Makhofola were seated in the minibus.
[19]
Ms Boloka testified
that Mr Ratau grabbed her from behind and covered her eyes with both
his hands. Mr Rarau also applied force
to her neck. Ms Boloka
succeeded to remove Mr Ratau’s hands from her eyes. During the
attack, and after Ms Boloka succeeded
to remove Mr Ratau’s
hands from her eyes, Ms Baloka attempted to go forward to assist
Sergeant Makhafola but Mr Ratau grabbed
her by her hair and pulled
her back.
[20]
Ms Boloka saw that
her handbag had fallen to the floor of the minibus during the
struggle with Mr Ratau. She reached out for her
handbag because her
service pistol was in the handbag. Mr Ratau got hold of the service
pistol and grabbed it by its bud. Ms
Boloka held the pistol by
its barrel. A struggle in ensued over the pistol. Ms Boloka saw
that the deceased was grabbing
the steering wheel of the minibus
while Sergeant Makhafola was preventing the deceased from doing so.
[21]
Ms Boloka also saw
that there was a struggle between Sergeant Makhafola and the deceased
at the seat behind the driver’s seat
when the minibus came to a
standstill. This was while she was still busy fighting off Mr Ratau.
Ms Boloka heard a gun shot being
fired. Prior to the gun shop being
fired, she heard Sergeant Makahafola warning the deceased that if he
does not stop his attack,
he would be shot. After the first gunshot
Ms Boloka heard another gunshot.
[22]
Ms Boloka testified
that she saw Sergeant Makhafola exiting from the passenger door of
the minibus and entering into the sliding
door of the minibus.
Sergeant Makhafola pointed his service pistol at Mr Ratau who
immediately stopped his attack on Ms Boloka.
Mr
Ratau
[23]
Mr Ratau testified
that he was being conveyed in the minibus with Sergeant Makhafola, Ms
Boloka and the deceased. Mr Ratau saw the
deceased storming to
Sergeant Makhafola. Mr Ratau testified that he was only in handcuffs
and that he was not cuffed with an ankle
chain to the deceased prior
to the deceased launching his attack. Mr Ratau testified that he did
nothing while he was seated at
the back seat of the minibus. He did
not did not attack Ms Boloka. Mr Ratau testified that, after the
minibus came to a standstill
and the deceased was a shot, Sergeant
Makhafola chained Mr Ratau’s ankle to the deceased’s
ankle after the deceased
had already died. Mr Ratau denied the
version of the state witnesses.
Evaluation
of the evidence
[24]
The only variance
between the version of the state witnesses and Mr Ratau is over Mr
Ratau’s conduct in the minibus. Mr Ratau
says he did nothing
and only observed what transpired between Sergeant Makhafola and the
deceased. Mr Ratau therefore alleges that
he did not attack Ms.
Boloka and did not attempt to rob her of her service pistol. During
cross examination, Mr Ratau could think
of no reason why the state
witnesses would lie to implicate him as they did.
[25]
The state witnesses
gave detailed accounts of the events and their versions are beyond
reproach. They testified honestly and made
a good impression upon me.
[26]
The same is not true
for Mr Ratau. As for Mr Ratau, the version he proffered is so
farfetched that it cannot possibly be true. Mr
Ratau was a bad
witness. Mr Ratau resolved to ask the prosecutor questions during her
cross examination. For this court had to
reprimand Mr Ratau and also
warned him that his conduct may lead to an adverse finding against
him.
[27]
I find that the
state witnesses’ evidence is a true account of what transpired.
The deceased attacked Sergeant Makhafola in
an attempt to rob him of
this service pistol. Mr Ratau attacked Ms Boloka in an attempt to rob
her of her service pistol. All of
this happened while the deceased
and Mr Ratau were being conveyed in the minibus from Sekhukune to
Mbombela by Sergeant Makhafola
and Ms. Boloka.
Common
purpose
[28]
The State relies on
the doctrine of common purpose for the conviction of Mr Ratau only on
the count of premeditated murder.
[29]
In my view, it is
not necessary to turn to the doctrine of common purpose in this case
in order to determine Mr Ratau’s guilt
of murder. Even if I am
wrong, all the requirements for the application of the doctrine of
common purpose in order to attribute
the criminal conduct of the
deceased and Mr Ratau to each other are satisfied in this case.
[30]
In
Jacobs
and Others v S
[3]
,
the Constitutional Court held:
‘
[71]
One of the justifications for the doctrine of common purpose is crime
control. As “a matter
of policy, the conduct of each
perpetrator is imputed (attributed) to all the others”.
Simultaneously, the doctrine of common
purpose assists at the
practical level where the causal links between the specific conduct
of an accused and the outcome are murky.
The doctrine of common
purpose is often invoked in the context of consequence crimes in
order to overcome the “prosecutorial
problems” of proving
the normal causal connection between the conduct of each and every
participant and the unlawful consequence.
In Thebus, Moseneke J
explained:
“
The
principal object of the doctrine of common purpose is to criminalise
collective criminal conduct and thus to satisfy the social
‘need
to control crime committed in the course of joint enterprises’.
The phenomenon of serious crimes committed
by collective individuals,
acting in concert, remains a significant societal scourge. In
consequence crimes such as murder,
robbery, malicious damage to
property and arson, it is often difficult to prove that the act of
each person or of a particular
person in the group contributed
causally to the criminal result. Such a causal prerequisite for
liability would render nugatory
and ineffectual the object of the
criminal norm of common purpose and make prosecution of collaborative
criminal enterprises intractable
and ineffectual.” (Footnotes
omitted.)
[72]
There are two possible ways in which a common purpose may arise:
“
(a)
By prior conspiracy (agreement) to commit the crime in question: for
example, where X and Y (or X, Y and Z) agree in advance
to commit a
particular crime, which implies a bilateral or multilateral act of
association.
(b)
By conduct (spontaneous association): for example, where X
notices (or Y and Z) committing a crime, and simply joins
in.
This would be a unilateral act of association. This form of
association is most commonly found in cases of mob
violence.”
[73]
This case does not concern the first form of common purpose, but only
the second. For conduct
to constitute active association, the
requirements set out in Mgedezi need to be met. These are
well-established. I
set them out in the context of the crime of
murder. Firstly, the accused must have been present at the
scene where, for example,
the assault was being committed.
Secondly, the accused must have been aware of the assault on the
deceased, in Mgedezi this
contemplated that the accused had knowledge
of a previous assault. Thirdly, the accused must have intended
to make common
cause with those who were perpetrating the assault.
Fourthly, the accused must have manifested a sharing of a common
purpose
with the perpetrators of the assault by performing some act
of association with the conduct of the others. Fifthly, the
accused
must have had the requisite mens rea (intent). In the
context of this case, the applicants must have intended that the
deceased
be killed, or they must have foreseen the possibility of him
being killed and performed an act of association with recklessness
as
to whether or not death was to ensue. Of particular relevance
in this matter is the requirement that the applicants must
have been
present at the time when the fatal blow was inflicted for them to be
guilty of murder.’ (Endnotes omitted)
[31]
With regards to the
requirements for common purpose: both the deceased and Mr Ratau were
present when the robberies took place;
both of them were aware of the
assaults; both the deceased and Mr Ratau made common cause with each
other and they associated with
each other’s conduct –
they almost simultaneously launched the attacks on Sergeant Makhofela
and Ms Boloka; and they
had the required
mens
rea
to rob the
police officers of their service pistols, undoubtedly either to harm
the officers or to make an escape or both.
Murder
[4]
[32]
Murder
is the unlawful and intentional causing of the death of another human
being.
[5]
The elements of the
crime of murder being, an act causing the death of another human
being, unlawfulness and culpability or put
differently,
mens
rea
.
[6]
Intention
[33]
Intention is one of
the elements of the crime of murder.
[34]
INNES CJ, in R. v.
Jolly and Others,
1923 A.D. 176
at pages. 181, 182 concluded that
intention may be inferred from the intrinsically probable
consequences of an act, whatever intentions
the doer may profess.
[35]
Culpability
in the case murder is either
dolus
directus
or,
dolus
indirectus
or,
dolus
eventualis
and
dolus
indeterminatus or generalis.
Other descriptions of
dolus
eventualis
are “constructive”
[7]
or “legal” intention and employs a technical and
artificial meaning of the word “intention”.
[8]
[36]
In S v Pistorius
2016 (1) SACR 431
(SCA), the Supreme Court of Appeal articulated the
concept of
dolus
eventualis
in
murder cases as follows at paragraph 26:
‘
In
cases of murder, there are principally two forms of dolus which
arise: dolus directus and dolus eventualis. These terms are nothing
more than labels used by lawyers to connote a particular form of
intention on the part of a person who commits a criminal act.
In the
case of murder, a person acts with dolus directus if he or she
committed the offence with the object and purpose of killing
the
deceased. Dolus eventualis, on the other hand, although a relatively
straightforward concept, is somewhat different. In contrast
to dolus
directus, in a case of murder where the object and purpose of the
perpetrator is specifically to cause death, a person’s
intention in the form of dolus eventualis arises if the perpetrator
foresees the risk of death occurring, but nevertheless continues
to
act appreciating that death might well occur, therefore ‘gambling’
as it were with the life of the person against
whom the act is
directed. It therefore consists of two parts: (1) foresight of the
possibility of death occurring, and (2) reconciliation
with that
foreseen possibility. This second element has been expressed in
various ways. For example, it has been said that the
person must act
‘reckless as to the consequences’ (a phrase that has
caused some confusion as some have interpreted
it to mean with gross
negligence) or must have been ‘reconciled’ with the
foreseeable outcome. Terminology aside, it
is necessary to stress
that the wrongdoer does not have to foresee death as a probable
consequence of his or her actions. It is
sufficient that the
possibility of death is foreseen which, coupled with a disregard of
that consequence, is sufficient to constitute
the necessary criminal
intent.’
[37]
The Supreme Court of
appeal confirmed that the foreseeability test to be applied is
subjective. The Supreme Court of Appeal says
in this regard as
follows at paragraph 29:
‘
Furthermore,
the finding that the accused had not subjectively foreseen that he
would kill whoever was behind the door and that
if he had he intended
to do so he would have aimed higher than he did, conflates the test
of what is required to establish dolus
directus with the assessment
of dolus eventualis. The issue was not whether the accused had as his
direct objective the death of
the person behind the door. What was
required in considering the presence or otherwise of dolus eventualis
was whether he had foreseen
the possible death of the person behind
the door and reconciled himself with that event.’
[38]
Leach JA said in
Pistorius at para 34:
‘
As
this court has pointed out, while the subjective state of mind of an
accused person in a case such as this is an issue of fact
that can
often only be inferred from the circumstances surrounding the
infliction of the fatal injury, the inference to be properly
drawn
must be consistent with all the proved facts.’
[39]
The Supreme Court of
Appeal proceeded to analyse the facts of the case and found that the
accused was guilty of murder,
culpa
being
dolus
eventualis
.
[40]
Therefore, in our
law,
dolus
eventualis
in
relation to murder is present where the accused, while subjectively
foreseeing the possibility that his or her act may cause
the death to
another, nevertheless persists in the act while reconciling himself
or herself with the outcome.
[41]
It
is often difficult to determine what an accused subjectively foresaw
from the available evidence. Holmes JA, in
S
v Sigwahla
[9]
outlined the essential facts of that case and confirmed that
reasonable inferences may be used in order to determine a
perpetrator’s
subjective foresight. He said as follows:
[10]
‘…
[T]he
appellant was armed with a long knife which he held in his hand; that
he advanced upon the approaching deceased; that as he
came up to him
he jumped forward and raised his arm and stabbed him in the left
front of the chest; that the force of the blow
was sufficient to
cause penetration for four inches and to injure his heart; and that
there is nothing in the case to suggest subjective
ignorance or
stupidity or unawareness on the part of the appellant in regard to
the danger of a knife thrust in the upper part
of the body. In my
opinion the only reasonable inference from those facts is that the
appellant did subjectively appreciate the
possibility of such a stab
being fatal.
[42]
The aim of the
deceased and Mr Ratau’s attack was to rob Sergeant Makhafola
and Ms. Boloka of their service pistols. Fire
arms are weapons
designed and used to kill. There is nothing in this case to suggest
that the deceased and Mr Ratau were ignorant
as to the danger of a
fire arm.
[43]
The deceased was
killed by Sergeant Makhafola when he defended himself against the
deceased who had attempted to rob him of his
service pistol. The
deceased and Mr Ratau’s aim was to rob Sergeant Makhafola and
Ms Boloka of their service pistols. In
doing so, both the deceased
and Mr Ratau subjectively foreseen that their attempt to rob the fire
arms may lead to one or both
of the firearms discharging leading to
one or more of the occupants of the minibus’s (or even an
innocent bystander’s)
injury or death. Yet, in the instance of
the deceased, he continued with his attempt to rob Sergeant
Makhafola’s service
pistol after one shot had already been
fired. Mr Ratau did the same and only stopped his attack on Ms Boloka
when he was pointed
by Sergrant Makhafola with his fire arm.
[44]
There is no question
in my mind that the deceased and Mr Ratau nevertheless persisted with
their attacks while reconciling themselves
with the outcome, that is
that someone may get injured or may die
Premeditated
murder
[45]
The concepts of
premeditation and intention are different. Premeditation involves a
thought process that contemplates a certain
outcome and the means to
achieve that outcome. Intention in all of its forms (
dolus
directus, dolus indirectus
and
dolus
eventualis
)
involves the perpetrator’s state of mind before and while the
criminal act is being committed.
[46]
Premeditated murder
is more blameworthy than a murder committed at the spur of the moment
or when death results after an assault.
Premeditated murder remains
the crime of murder. It does not constitute a special species of
murder. The circumstances under which
the murder was committed must
show that the murder was premeditated so that the court is able
consider an appropriate sentence.
If premeditated murder is proven a
court is obliged to impose a minimum sentence of life imprisonment
unless exceptional circumstances
exist to deviate from that sentence.
This is prescribed in section 51(1) of the Criminal Law Amendment Act
105 of 1997 (“the
Minimum Sentence Act”).
The
Minimum Sentences Act
[47]
The Minimum
Sentences Act does not create statutory crimes. The aim of the Act is
to lay down minimum sentences for certain serious
crimes after having
regard to the crime, the circumstances under which it was committed,
the victim of the crime and the circumstances
of the perpetrator. The
requirements for a conviction of a crime mentioned in the Act must be
proven during the merits stage of
the trial and not during the
sentencing stage. For example, if the State wishes to rely upon
section 51(1) of the Act for the minimum
sentence of life
imprisonment to apply, the State must prove that the murder was
premeditated.
[48]
In
S
v Raath
2009 (2) SACR 46
(CPD)
,
the Full Court had to decide on appeal, whether the murder committed
by the accused upon his wife constituted premeditated murder.
The
accused was prone to violent and aggressive behaviour towards the
deceased and also abused alcohol. At the night of the incident,
the
accused had gone out drinking. The evidence showed that the accused
decided that he wanted to kill his wife and within a few
minutes
carried out the murder. The accused was heavily intoxicated when he
shot his wife. The court had to decide whether the
murder was
premeditated or not. The time lapse between the accused deciding that
he was going to shoot his wife and the time of
the actual murder
became a prominent factor in deciding the issue of premeditation. The
court said at paragraph 16 as follows:
‘
Planning
and premeditation have long been recognised as aggravating factors in
the case of murder. See S v Khiba
1993 (2) SACR 1
(A) at 4 and S v
Malgas
2001 (1) SACR 469
(SCA) at para 34. As Terblanche, Guide to
Sentencing in South Africa, Lexis Nexis, 2nd edition 6.2.2 states,
planned criminality
is more reprehensible that unplanned, impulsive
acts. However, there must be evidence that the murder was indeed
premeditated or
planned. See e.g. S v Makatu
2006 (2) SACR 582
(SCA)
at paras 12 – 14. The concept of a planned or premeditated
murder is not statutorily defined. We were not referred
to, and nor
was I able to find, any authoritative pronouncement in our case law
concerning this concept. By and large it would
seem that the question
of whether a murder was planned or premeditated has been dealt with
by the court on a casuistic basis. The
Concise Oxford English
Dictionary, 10th edition, revised, gives the meaning of premeditated
as to “think out or plan beforehand”
whilst “to
plan” is given as meaning “to decide on, arrange in
advance, make preparations for an anticipated
event or time”.
Clearly the concept suggests a deliberate weighing up of the proposed
criminal conduct as opposed to the
commission of the crime on the
spur of the moment or in unexpected circumstances. There is, however,
a broad continuum between
the two poles of a murder committed in the
heat of the moment and a murder which may have been conceived and
planned over months
or even years before its execution. In my view
only an examination of all the circumstances surrounding any
particular murder,
including not least the accused’s state of
mind, will allow one to arrive at a conclusion as to whether a
particular murder
is “planned or premeditated”. In such
an evaluation the period of time between the accused forming the
intent to commit
the murder and carrying out this intention is
obviously of cardinal importance but, equally, does not at some
arbitrary point,
provide a ready-made answer to the question of
whether the murder was “planned or premeditated”.’
[49]
Ultimately the Full
Court found that even if the evidence suggested that the time between
the accused taking the decision to murder
his wife and the actual
murder was no more than a matter of a few seconds and that it was
correct that ‘…
[f]rom
the moment he appeared to conceive the idea of shooting his wife the
appellant brooked no opposition and almost immediately
proceeded to
carry out the terrible deed.’
However
the court held that this did not ‘…
..[t]ransform
what appears to have been the deadly, but spur of the moment act or
acts of a man in an emotional rage, into a planned
and premeditated
murder.
’
[50]
In
Kekana
v The State (629/2013)
[2014] ZASCA 158
(1 October 2014)
,
the Supreme Court of Appeal held that it was not necessary that an
accused should have thought or planned his action a long period
of
time in advance before carrying out the plan. The court held that
time is not the only consideration because even a few minutes
are
enough to carry out a premeditated action.
[51]
In
Francis
& others v The State (866/2018) ZASCA 177 (2 December 2019)
,
the accused savagely assaulted the deceased. It does not appear from
the judgment of the Supreme Court of Appeal that it was proven
by the
State that the accused had a direct intention i.e.,
dolus
directus
, or
that they premeditated to murder the deceased. After considering the
evidence, the trial court convicted the accused of murder
in terms of
the provisions of section 51(1) the Minimum Sentences Act. The
Supreme Court of Appeal considered the totality of the
evidence
regarding the assault and the injuries caused by the assault. It then
confirmed the accused’s conviction under section
51(1) of the
Minimum Sentences Act on the basis of intention in the form of
dolus
eventualis
.
[52]
How then is
premeditated murder reconciled with intention in the form of
dolus
eventualis
? In
my view, it is not the death that had to be premeditated or planned
but rather the aim of the criminal act. The aim that is
planned for,
namely the causing of bodily harm to another person should take
prominence. If a perpetrator carries through with
his plan to cause
another person bodily harm which ultimately results in that person’s
death where the death was foreseen
by the perpetrator, premeditated
murder is established. Therefore, if A premeditates an assault
upon B, carries out the assault
while foreseeing that the assault may
cause B’s death, B’s murder is premeditated despite that
the original plan was
only an assault.
[53]
I gather from Raath,
Kekana, Francis and Others and Pistorius that premeditation and the
particular form of intention must be considered
with reference to the
facts and circumstances of each case.
[54]
The circumstance of
this case is such that both the deceased and Mr Ratau foresaw that
serious injury or even death may ensue as
a result of their plan (and
the execution thereof) to rob the police officers of their service
pistols. In my view, the attacks
were pre-planned for why else would
the first thing Mr Ratau did was to attempt to close Ms Boloka’s
eyes. Clearly the only
reason could have been in order to prevent her
from seeing what the deceased was doing. By keeping Ms Boloka
occupied with Mr Ratau’s
own attack on her, he was also
preventing Ms Boloka from reaching Sergeant Makhofola who was driving
the minibus. Not even the
two shots that were fired made Mr Ratau to
stop the assault. Mr Ratau pulled Ms Boloka back by grabbing her hair
so that she could
not reach Sergeant Makhofola and the deceased.
[55]
Having
regard to the principles set out above measured against the facts of
this case I find that the robbery was pre-meditated.
A robbery
implies the use of force or threat of force aimed at bodily harm. The
deceased and Mr Ratau foresaw that someone might
be killed or injured
as a result of the robberies and notwithstanding this knowledge
nevertheless perpetrated the attempted robbery.
It does not matter
that obviously not one of them wanted their accomplice to be injured
or killed. Because the causing of harm
was premeditated which harm
lead to the death of the deceased, Mr Ratau is guilty of premeditated
murder,
mens
rea
being,
dolus
eventualis
.
Mr Ratau and the deceased must have known that the police officers
would endeavour to use their fire arms when attacked….they
must have known their attack on the police officers could lead to the
fire service pistols to be used either in an arrack on the
police
officers or on Mr Ratau and/or the deceased – they must have
foreseen that the harm could lead to death.
[11]
[56]
Mr Ratau attempted
to rob Ms Boloka of her service pistol in brazen disregard of the
consequences of his act. This is not better
demonstrated by the
evidence that Mr Ratau got hold of Ms Boloka’s fire arm at its
bud while she was holding the barrel.
A shot could have gone off at
any time, yet Mr Ratau did not cease the attack. He only stopped when
he was pointed by Sergeant
Makhafola with his service pistol.
[57]
In
the premises, Mr Ratau is found guilty of both counts as charged.
Roelofse
AJ
Acting
Judge of the High Court
DATE
OF HEARING: 18,
19 and 25 July 2022
DATE
OF JUDGMENT: 1 August 2022
APPEARANCES
FOR
THE STATE: MS
MNISI
FOR
THE ACCUSED: MR
MUTHIVHITIVHITI
INSTRUCTED
BY:
LEGAL AID BOARD
[1]
Ms
Boloka was employed by the South African Police Service (the SAPS)
as a constable at the time of the incident but has since
then
resigned from the SAPS.
[2]
As contemplated
in
Section
51(1) of the General Law Amendment Act 105 of 1997.
[3]
2019 (1) SACR 623
(CC).
[4]
Under
the headings ‘Murder’ and Premeditated murder’, I
repeat what I have set out in S v Dube, Case Number:
CC03/22 for the
principles in S v Dube equally apply in this case.
[5]
R v Ndhlovu
1945
AD 369
373.
[6]
Mens
rea
means
‘a guilty mind’ while culpability must, in the eyes of
the law, be grounds for blaming the perpetrator personally
for his
or her unlawful conduct.
[7]
R v Nsele
1955 2
SA 145
(A) 151B. Intention in the form of
dolus
eventualis
in the case of assault is sufficient – R v Basson [1961] 1 All
SA 91 (T).
[8]
R v Huebsch
1953
2 SA 561
(A) 566–568.
[9]
1967 (4) SA 566
(A) At 570G-H.
[10]
At 570G-H.
[11]
See:
S v Nhlapho and Another
1981 (2) SA 744
(A).