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[2021] ZAECMHC 13
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Tilayi v S (CA 22/2020) [2021] ZAECMHC 13; [2021] 3 All SA 261 (ECM); 2021 (2) SACR 350 (ECM) (9 March 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION
REPORTABLE
DATE
DELIVERED: 9 March 2021
APPEAL
CASE NO: CA 22/2020
CASE
NO: 29/2007
MBIYOZO ZANODUMO
TILAYI
APPELLANT
AND
THE
STATE
RESPONDENT
FULL
COURT APPEAL JUDGMENT
D
VAN ZYL DJP:
[1]
The appellant and his co-accused were indicted in the Mthatha High
Court before Pakade
J on a charge of murder (count 1), attempted
murder (counts 3 to 6), attempted robbery with aggravating
circumstances (count 8),
and the unlawful possession of firearms and
ammunition (counts 9 and 10) in contravention of the provisions of
the Firearms Control
Act.
[1]
[2]
The charges arose from what the State alleged to have been a
conspiracy to commit
an armed robbery. The plan was to
intercept a cash-in-transit vehicle en route to deliver cash monies
at a pension pay point.
While the conspirators were lying in wait for
the arrival of the money van, armed and on the ready, they were
warned that the money
van was accompanied by members of the South
African Police Services. In response, they made the decision
not to carry out
their plan any further, and to leave the area.
However, in making their escape they were spotted by the police.
With
the police in pursuit, the conspirators fled the area in two
motor vehicles. During the car chase gunshots were fired at
police officials, and again later, after the conspirators had
abandoned their vehicles, and had fled into a nearby forest.
A
police official, Inspector Gerhard Anton Maritz, sustained a gunshot
wound, and he tragically succumbed to his injuries.
[3]
With the exception of one of the counts of attempted murder (count
7), the appellant
was found guilty as charged and he was sentenced to
what amounted to long terms of imprisonment. On the count of
murder,
he was sentenced to undergo life imprisonment. He
received a sentence of 15 years’ imprisonment for the attempted
robbery,
and 18 and 8 years’ imprisonment respectively on the
remaining counts of attempted murder and those counts framed under
the
Firearms Control Act, which counts were taken together for the
purposes of sentence.
[4]
The appeal lies against both the convictions and the sentences
imposed by the trial
court. The appeal against the convictions
essentially raises three issues: The first is whether or not
the decision
not to proceed with the plan to intercept the money van,
exonerates the appellant from liability on the charge of attempted
robbery.
Secondly, and if so, whether it must also follow that
he is not liable for any of the charges founded on the acts of
violence perpetrated
subsequently by members of the group who fired
gunshots at the pursuing police officials. The third issue, is
whether on the evidence,
the appellant can be said to have been in
possession of a firearm(s) and ammunition.
[5]
In convicting the appellant, the trial court in summary found that
the appellant was
a participant in the planning of the robbery; that
he was part of the group who were lying in wait for the arrival of
the money
van; that he was armed with a firearm; and that he was in
one of the motor vehicles that fled from the scene, and from which
gunshots
were fired at police officials who were in pursuit.
The court found that the actions of the appellant and his
co-conspirators,
before they had left the area where they were to
intercept the money van, went beyond mere preparation, and that the
appellant
acted together with his co-accused in the furtherance of a
common purpose.
[6]
It was submitted before us that the conclusions drawn by the trial
court from the
accepted evidence cannot be sustained in law.
The appellant placed reliance for this submission on
S
v Makamba and Others
.
[2]
In that matter, the full court sitting on an appeal against the
convictions and the sentences of three of the appellant’s
co-accused, namely accused numbers 4, 5 and 6, found that, on an
application of the relevant legal principles, the actions of the
three accused at the moment of the interruption of the plan to rob
the cash-in-transit vehicle did not constitute an attempt to
commit
robbery. It reasoned that the conduct of the accused did not
progress beyond the point of preparation. Premised
on this
finding the court concluded that it must as a result follow “…
logically
that if the robbery had been abandoned before consummation, the first
and second appellants can also not be held criminally
responsible for
any acts committed by their co-conspirators during the shooting
affray when their escape was thwarted by the police.
Neither of
them was present
during
the shooting affray, and since the planned robbery had been
abandoned, the others were engaging in independent actions which
had
not been sanctioned by them.”
[3]
Premised on this finding, the full court proceeded to uphold
the appeal, and it set the convictions and the sentences
of the
appellant’s three co-accused aside. It was submitted
before us that the position of the appellant is no different
from
that of the co-accused in
Makamba
,
and that the aforementioned finding of the court must equally find
application in this appeal.
[7]
The trial court in our view correctly accepted the evidence of the
state witnesses
with regard to the manner in which the events
unfolded prior to, and on the day of the planned robbery. Not
unlike some of
his co-accused, the appellant raised a defence of an
alibi which the trial court justifiably rejected as false beyond a
reasonable
doubt. The uncorroborated and belatedly raised
alibi, stood in stark contrast to the overwhelming and corroborated
evidence
of the witnesses Madwantsi, Mjali and Ntshinga, all three of
whom were members of the group which had planned the robbery.
The essence of their evidence was that the appellant was a
participant in the plan, and that he was present on the day in
question.
Correctly so in our view, it was not submitted with
any conviction that there exists any reason to interfere with the
factual findings
of the trial court in this regard.
[8]
Considering the nature of the defence raised by the appellant, and
the absence of
any countervailing evidence proffered by him, the
facts are either common cause, or were not seriously challenged in
argument.
What follows is a summary of the evidence. The
appellant was a member of a group of persons who carefully planned
and made
preparations to commit an armed robbery by intercepting and
holding up a cash-in-transit vehicle belonging to Cash Paymaster
Services.
The vehicle was scheduled to deliver cash money at a
pension pay-out point at Majavu village in the district of Tsolo on
15 September
2005. The conspirators held a meeting at which the
robbery was planned. To that end they obtained heavy calibre
firearms
such as AK47, R4 and R5 rifles, as well as two motor
vehicles, namely an Isuzu pickup truck and a Honda Ballade sedan.
The
sedan was a stolen vehicle. After a cleansing ceremony was
held, the participants travelled in two groups to a predetermined
point along the route of the money van.
[9]
The money van was accompanied by two motor vehicles with employees of
Cash Payments
Services whose task it was to provide security.
Along their way to Majavu village, the team leader of the group
accompanying
the money van received a message from a manager that two
suspicious looking vehicles were spotted near Majavu. Acting on
that information, they sought assistance from the South African
Police Services, and the convoy was joined at Tsolo by a number
of
police vehicles. Along the way two vehicles matching the
description given to them of the vehicles on which suspicion
fell,
namely an Isuzu truck and a Honda Ballade sedan, approached the
convoy from the opposite direction travelling on the same
road.
The police were alerted to this fact. After the two vehicles
had passed the convoy, the police turned their vehicles
around and
gave chase.
[10]
After the group of conspirators had assembled at the prearranged
place along the road to Majavu
village, lying in wait for the arrival
of the money van, they received two phone calls. The one phone
call was from a co-conspirator
who was placed along the route near
Tsolo as a lookout. He warned them that the money van was
accompanied by police
officials. A similar message was received
from an informant, apparently an employee of Cash Paymaster Services,
warning them
that their presence on the road had been discovered, and
that the police were present. Discretion being the better part
of
valour, the conspirators decided that they should leave the area.
The only road leading out of the area was the one on which
the
approaching convoy accompanying the money van was travelling. After
they had passed the convoy, they noticed that the police
vehicles had
turned around, and were in pursuit.
[11]
With the police in hot pursuit the two vehicles sped off. In
the course of the pursuit
the occupants of the Isuzu vehicle fired
shots at the police vehicle that followed immediately behind them.
The Isuzu vehicle
some time later came to a stop and some of the
occupants alighted. They continued to fire shots at the police
vehicle which
was soon joined by other police vehicles. The
occupants of the Isuzu got back into the vehicle and it again sped
off.
Soon thereafter the vehicle was abandoned. While
continuing to shoot at the police, the occupants fled and made good
their
escape into a nearby forest. The occupants of the Honda
vehicle had similarly abandoned their vehicle elsewhere along the
route, and had fled on foot.
[12]
Police officials, including the deceased Inspector Maritz, made an
attempt to search the area
of the forest where the occupants of the
Isuzu had escaped on foot. The topography of the area made the
search difficult
and caused them to abandon the search. They
instead sought the assistance of a police helicopter and awaited its
arrival.
The police officials remained at the abandoned Isuzu
vehicle. After they had stopped a passing motorist, and were
busy searching
his vehicle as a precaution, shots were fired at them
from the direction of the forest. In the skirmish that followed
Inspector
Maritz was fatally wounded.
[13]
Is the appellant on these facts guilty of attempted robbery? An
attempt to commit a common
law or a statutory offence is punishable
at law.
[4]
Where the activities of a person who intends to commit a crime is
interrupted, the test is whether there has been, what is
referred to
as, “
the
commencement of the consummation”
of the crime. The question is essentially whether the accused
person unlawfully engaged in conduct that was not merely preparatory,
but had reached at least the stage of the commencement of the
execution of the intended crime.
“
Clearly
the decision in any particular case as to whether or not, at the
moment of interruption or prevention, the conduct of the
accused had
progressed beyond the stage of preparation and constituted a
commencement of the consummation must in the last resort
become a
factual enquiry in relation to the particular circumstances of the
case in which the following factors, amongst others,
would play a
part: whether at that stage the accused had made up his mind to
commit the crime, the degree of proximity or
remoteness which that
arrested conduct bore to what would have been the final act required
for the commission of the crime and,
generally, considerations
of
practical common sense. I doubt whether any greater precision
than this can be achieved.”
[5]
[14]
On the facts of this matter, all the preparations necessary to
execute the robbery were completed.
The question is whether by
the time they were interrupted, the actions of the appellant and his
co-conspirators went beyond the
dividing line between that
preparation, and the commencement of the execution of the
robbery.
[6]
It is a factual question, and “…
a
value judgment of a practical nature is to be brought to bear upon
each set of facts as it arises for consideration …”
[7]
Remoteness or proximity as a relevant factor must necessarily be a
matter of degree that may vary, depending on the facts
and the
particular circumstances of each case. It must be considered in
the context of the definitional elements of the crime
in question
itself, and the conduct prescribed by the crime being attempted.
Robbery is the theft of property through the
use of either violence,
or the threat of violence. In the present matter the appellant and
his co-accused did not take a step towards
satisfying any of the
definitional elements of the crime of robbery. There was no act
that can be said to go towards the
actus
reus
required for the crime of robbery
[8]
.
At the relevant point in time they were still in control of the
course of events, as the money van had not as yet arrived,
and they
still had the time and the opportunity to change their minds, which
they in fact did when it turned out to be unsafe to
carry out their
plan to rob the money van.
[9]
On the facts I am of the view that at the time of interruption, the
conduct of the appellant and the group did not amount
to anything
more than preparation. In the result, the appellant’s
conviction on the charge of attempted robbery cannot stand.
[15]
That brings me to the murder and attempted murder convictions. As
stated, the appellant was convicted
by the trial court on these
charges on the basis of the common purpose doctrine. The reason
for the trial court applying
the doctrine is simply that the State
was unable to prove the identity of all of the co-conspirators who
fired gun shots at the
police officials, and in particular, the gun
shot that fatally wounded the deceased. Consequently, the State
had difficulty
in proving the necessary causal connection between the
individual conduct of each of the conspirators, and the commission of
these
offences. The submission before us is that the
appellant’s convictions on these charges cannot be justified on
an application
of the common purpose principle. It was argued
that, once it is accepted that the appellant and the other
conspirators had
withdrawn from the commission of the planned crime
of robbery, he could no longer be held liable for the subsequent
actions of
any of his co-conspirators. As stated earlier,
counsel for the appellant found support for this argument in the
findings
in
Makamba
that
the act had been abandoned before its consummation, and that accused
numbers 4 and 5 could not be held liable for any of the
later actions
perpetrated by their co-conspirators in their absence.
[16]
As a general proposition, this argument has no legal basis and is
without merit.
It suggests two things:
Firstly, that the disassociation or the withdrawal of an accused
person from the crime that is the
subject matter of the common
purpose (and which arises from a conspiracy to commit that crime),
brings the common purpose itself
to an end. Consequently, any
criminal act committed by any one or more of the group of
co-conspirators thereafter, can no
longer give rise to criminal
liability on the basis of common purpose. The short answer to
this is that it is not disassociation
with the crime of robbery
itself that would release the appellant as a participant in a common
purpose from liability for the acts
of any of his or her co-accused,
but rather his or her disassociation from the common purpose itself.
This proposition further
negates the fact that the common purpose may
be expanded, or that the disassociation from the common purpose,
which has the robbery
as the subject matter and objective, does not
exclude the coming into being of a common purpose with a different
purpose or objective
which would encompass the criminal acts
performed subsequent to the termination of the initial common
purpose.
[17]
Secondly, the argument raised suggests that the absence of an accused
person, who is a co-conspirator,
from the scene at the time of the
commission of a crime other than the one which they had conspired to
commit, will exonerate that
accused from any liability for that other
crime. The answer to this suggestion, is that it gives no
consideration to the
form of common purpose that finds application,
and that it is the nature of the common purpose that finds
application on the facts,
that is determinative of whether or not the
appellant, or for that matter, any of his co-conspirators, would be
exonerated from
liability should it be found that they were not
present at the scene of the crime. To fully explain the
fallacy that
underlies the argument raised, it is necessary to
understand the principles that underlie the legal doctrine of common
purpose
as it exists in our law.
[18]
The essence of the common purpose doctrine is that the conduct of
persons who act in concert,
is as a matter of law imputed to one
another, regardless of their actual degree of participation or causal
contributions.
It provides for a form of complicity, and finds
application in group based criminal activity where it dispenses with
the need to
provide proof that the conduct of each participant
contributed causally to the ultimate unlawful consequence. The
doctrine
is of general application,
[10]
but is mostly couched in terms which relate to consequence crimes,
such as murder, where it is often very difficult to determine
which
offender’s actions were causally responsible for the death of
the deceased.
[11]
[19]
In
S
v
Thebus
[12]
the Constitutional court gave recognition to the fact that a common
purpose (“
a
joint criminal enterprise”
)
has two forms. “
The
first arise where there is a prior agreement, express or implied, to
commit a common offence. In the second category,
no such prior
agreement exists or is proved. The liability arises from an
active association and participation in a common
criminal design with
the requisite blameworthy state of mind.”
Thebus, with approval, referred to the following two definitions of
the doctrine of common purpose by Burchell and Milton,
and Snyman
respectively:
“
Where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible
for 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.”
[13]
And
“
The
essence of the doctrine is that if two or more people, having a
common purpose to commit a crime, act together in order to achieve
that purpose, then the conduct of each of them in the execution of
that purpose is imputed to the others.”
[14]
[20]
Expressions and terminology such as common design; common endeavour;
common objective; common
intention; joint design, and acting in
concert, are used interchangeably with the term common purpose.
These all bear the
same meaning, and refer to the arrangement or the
understanding of two or more persons to participate in a common
criminal endeavour.
As stated, our law recognises two forms of
common purpose. A common purpose may arise either from
association by agreement,
or from the active association of one or
more persons with the unlawful conduct of another person(s).
Terms such as common
design or joint venture, are probably more
descriptive of the true nature of a common purpose which arises from
an agreement, while
acting in concert best describes the second form
of common purpose.
[21]
When the common purpose is founded on an agreement, the agreement
need not be express.
It may be implied, in that it is inferred
from all the circumstances.
[15]
An agreement to commit an offence “…
is
generally a matter of inference deduced from certain acts of the
parties accused, done in pursuance of a criminal purpose in
common
between them.”
[16]
A common purpose may consequently be found to have arisen
extemporaneously.
[17]
Its existence is inferred from the fact that a number of persons act
together in circumstances which are indicative of an
intention to
achieve a single common objective.
[22]
Common purpose based on an agreement comprises the group’s
common design or intention.
It is the agreed course of conduct
in the furtherance of the criminal purpose which the agreed course of
conduct intends to achieve.
The specific offence which the
group agreed to commit is simply the reason for, or the purpose of
the group’s agreed course
of conduct. The question when the
doctrine is applied, is whether the act(s) that forms the criminal
act (the
actus
reus
)
as a definitional element of the offence in question, falls within
the agreed course of conduct. If so, the doctrine makes
one
party liable for the criminal act of another party to the agreement.
It is important to emphasise that the doctrine does
not discharge the
State from having to prove fault (
mens
rea
)
as a necessary and separate constituent element of the offence. The
doctrine simply imputes the conduct of one person to
another, and not
also fault.
[18]
This conforms with the principle of individual criminal
responsibility in terms of which culpability is based on the criminal
intent of each individual participant to the criminal design.
[23]
In the absence of an agreement, express or implied, a common purpose
may arise from an act of
association if the requirements constituting
an active association have been individually satisfied. The
requirements for
this form of common purpose were determined in
S
v Mgedezi
,
[19]
and confirmed in
Thebus
.
They are the following:
(a)
p
resence
at the scene where the ultimate unlawful consequence was being
committed;
(b)
a
wareness
of the ultimate unlawful consequence;
(c)
i
ntention
to make common cause with those who were actually perpetrating the
ultimate unlawful consequence;
(d)
m
anifestation
of a sharing of a common purpose with the perpetrators of the
ultimate unlawful consequence by performing some act
of association
with the conduct of the others; and
(e)
t
he
requisite fault.
[20]
[24]
The fact that the doctrine of common purpose is comprised of two
distinct forms, does not mean
that the two forms are mutually
exclusive. In other words, a finding that the unlawful act in
question falls outside an existing
prior agreed to common design,
does not mean that it cannot also be found to have been done in the
furtherance of a common purpose
that arose spontaneously, or by
active association before, during or after the execution of the
earlier agreed to common design.
Furthermore, the execution of
the agreed common purpose may also satisfy the requirements for
active association.
S
v Nkabinde and Others
[21]
provides an example of this. In that matter a number of crimes
were committed in the execution of a planned robbery.
The court
found that even if the acts of violence, which included the shooting
of innocent bystanders, were not part of the agreed
attack on the
cash-in-transit vehicles, the liability of the co-conspirators for
the unlawful acts was established on the basis
of active association,
in that “…
the
evidence conclusively shows that the appellants were present at the
first scene where the said acts of violence were being committed;
that therefore, they knew or must have been aware of these attacks;
that they intended to make common cause with the robbers who
committed those acts; and that they manifested this intention by
themselves performing acts of association with the conduct of
the
other robbers.”
[22]
[25]
An accused person can only be held liable for the criminal conduct of
a co-accused or other participant
in the common purpose which falls
within the ambit or the scope of the common purpose.
[23]
What falls within the common design arising from an agreement is a
factual question that must be determined on the facts
of, and in the
circumstances of each particular case. Founded on agreement,
the scope of the association of the participants
in the common
purpose is naturally primarily derived from the express or implied
terms of the agreement. Determining what
the content of the
agreed common purpose is, is invariably a matter of inference.
However, it would encompass not only acts
which were expressly or
impliedly agreed upon, but also acts which were necessary to give
effect to the common objective, or which
are the natural consequences
of the execution of the common unlawful enterprise.
[24]
The reason is that acts that flow from the execution of the criminal
design may be foreseeable as a possible incident of
the criminal
enterprise, and would consequently fall within the scope of that
enterprise. That the criminal conduct of one
participant in a
common purpose, that falls outside the immediate scope of the agreed
common purpose, may be imputed to another
participant to the criminal
enterprise as a foreseeable possibility, was confirmed by the Appeal
Court in
S
v Madlala:
[25]
“
Generally,
and leaving aside the position of an accessory after the fact, an
accused may be convicted of murder if the killing was
unlawful and
there is proof –
(a)
…
(b)
…
(c)
that
he was a party to a common purpose to commit some other crime, and he
foresaw the possibility of one or both of them causing
death to
someone in the execution of the plan, yet he persisted, reckless of
such fatal consequences, and it occurred; see
S
v Malinga and Others
1963 (1) SA 692
(A) at 694 F-H and 695; …”
[26]
[26]
The scope of the common purpose would accordingly not only include
the primary criminal act which
was pertinently agreed upon (in this
case the robbery), but would extend to also include criminal acts
constituting other offences
which were within the contemplation of
the participants to the common purpose as a possible incident, or a
consequence of the execution
of the primary act. It goes
without saying, as is clear from the above extract from
Madlala
,
that where intention is the requisite mental element (
mens
rea
)
necessary for criminal liability for the offence in question, the
State must prove that the accused had subjective foresight of
the
possibility, and that he reconciled himself with it.
[27]
It is not necessary that each participant must know or foresee in
detail the exact manner in which the unlawful act and consequences
will be brought about.
[28]
[27]
There are marked differences between the two forms of common
purpose. As Snyman
[29]
points out, if reliance is placed on active association, there must
be proof that the accused person associated himself, not with
a wide
and general common design, but with a specific act whereby the other
participant(s) committed the crime in question.
This form of
common purpose commonly arises when a number of persons join in the
commission of an unlawful act(s), and liability
arises from the
active association of the accused with the actions of the group.
Otherwise than a common purpose that arises
from active association,
if liability is based on a prior agreement, the accused need not be
present at the scene of the crime
at the time of the commission of
the crime.
[30]
This second form of common purpose usually arises in the situation
where two or more persons, in pursuit of a criminal enterprise
(usually to commit a specific offence), commit one or more secondary
unlawful acts. Liability for the actions of the individual
members of the group arises from the accused’s association with
the criminal enterprise.
[28]
From these principles it is evident that in a case where the state
seek to place reliance on
the doctrine of common purpose, the trier
of fact will be required to determine the nature of the common
purpose relied upon, what
the scope of that common purpose happened
to be, and whether the accused was a participant, and remained a
participant to the common
purpose. I cannot agree more with van
Der Merwe
[31]
the importance of the need to identify the form of common purpose
that finds application on the facts of any particular case, and
to
ask the right questions. The two forms apply to different sets
of circumstances, have different conditions for their application,
and must not be invoked when those circumstances and conditions are
not present.
[29]
In this matter, on the evidence in its totality, and the facts as
they appear therefrom, the
agreement to hold up the cash-in-transit
vehicle gave rise to, and was the primary source of a common
purpose. The group,
acting in concert, collaboratively planned
to rob the Cash Paymaster cash-in- transit vehicle on its way to
Majavu village.
The area along the road where the vehicle was
to be intercepted was predetermined. The participants in the
planned robbery
were recruited beforehand. They gathered to
plan the execution of the robbery. The manner in which the
cash-in-transit
vehicle would be intercepted was discussed, including
the manner of use of firearms, and the role to be played by the
participants.
It was agreed that vehicles and firearms should be
acquired to carry out the plan. According to Madwantsi and
Mjali the plan
was to use the two vehicles to block the path of the
money van, and to shoot at it in order to subdue the crew and
overcome any
resistance.
[30]
The appellant was a party to that agreement, and he actively
associated himself in its execution.
He was present at the
meeting where the robbery was planned. According to the
accomplice Madwantsi, the appellant played
a leading role in its
planning. The task assigned to the appellant was to watch over
the guards while the other participants
removed the money from the
cash-in-transit vehicle. The appellant accompanied the group,
first to the cleansing ceremony,
and then to the prearranged place on
the road to Majavu. He travelled in the Isuzu vehicle and he
was armed. He remained
with the other occupants of the vehicle
during the car chase until they abandoned the vehicle and fled into
the forest. The
evidence of the accomplice Mjali was that the
appellant was one of the occupants of the Isuzu who fired shots at
the police, and
again when they abandoned the vehicle and fled into
the forest. He throughout remained an occupant even after the
vehicle
had first stopped and the occupants had alighted and had shot
at their pursuers. The appellant was clearly a participant in the
common purpose and would consequently be liable for any act committed
by him or any of his co-conspirators which fell within the
scope of
the common purpose.
[31]
That leads to the next question. What was the scope of their
agreed common purpose?
Over and above any actions that were
necessary to execute the objective of the common purpose (that is the
actual robbery), the
execution of their common design would have
required the appellant and his co-conspirators to drive in motor
vehicles to the place
where they had planned to intercept the money
van, and after having executed the robbery, to safely make good their
escape by again
leaving the area. That the appellant and his
co-conspirators found it necessary to have a person on the inside of
Cash Paymaster
Services, and to also place a person along the route
which the money van would travel on, and to remain in telephonic
contact with
him, is indicative of the fact that they had considered
and anticipated that the execution of the robbery may not go
according
to plan, and that the need may arise for them to adjust
their plan, or even to abort it. They did not have to foresee
the
exact manner in which the plan to rob the cash-in-transit vehicle
would be thwarted, or what it would take for them to evade being
apprehended
.
“It has long been accepted that the operation of the common
purpose doctrine does not require each participant to
know or foresee
in detail the exact manner in which the unlawful
consequence
occurs. Were it otherwise, it would not be possible to secure a
conviction simply on the basis that some event
had happened during
the execution of the common purpose that all the participants in the
common purpose had not more or less planned
for. All that is
required for the state to secure a conviction on the basis of common
purpose is that an accused must foresee
the possibility that the acts
of the participants may have a particular consequence, such as the
death of a person, and reconciles
himself to that possibility.”
[32]
[32]
The appellant and his co-conspirators were all armed with heavy
calibre firearms which they agreed
would be used in the event of
resistance being offered. On this evidence, the inescapable
inference is that the scope of
their common purpose was to include,
as a foreseeable possibility, that they may be met with resistance at
any of these different
stages of the execution of their criminal
design, that they may have to use violence to make good their escape
with the assistance
of one another, and that persons may be seriously
injured, that may in some way or the other result in the death of the
victim.
It will include the possibility that persons may
be killed in the cross fire.
[33]
“
Generally
speaking, the fact that the first appellant had prior to the robbery
made common cause with his co-robbers to execute
the crime,
well-knowing that at least two of them were armed, would set in
motion a logical inferential process leading up to a
finding that he
did in fact foresee the possibility of a killing during the robbery
and that he was reckless as regards that result.”
[34]
[33]
The conduct of the appellant was consistent with the plan to use
violence, and is indicative
of the fact that he did foresee the
possibility of a shooting affray, that he stood reckless to the
eventuation thereof, and continued
to act in accordance with the
common design. He accordingly had the necessary
mens
rea
in the form of
dolus
eventualis
in respect of counts 1 and 3 to 6. I may add that, as in the
case of Nkabinde and Others,
[35]
I am of the view that the facts of this case also satisfy the
requirements for common purpose in its active association form.
The accepted evidence conclusively shows that the appellant was
present on the scene where the acts of violence were being committed;
he intended to make common cause with his co-conspirators at that
time; and he manifested that intention by performing an act of
association with their conduct by also shooting at the police.
[34]
The finding that the actions of the appellant and his co-conspirators
after they had left the
place where they planned to execute the
robbery fell within the scope of their common purpose, effectively
disposes of the submission
that the appellant’s liability for
the death of the deceased and the attempted murder charges must be
excluded simply by
reason of his and the other co-conspirators
withdrawal from the robbery. The question is not whether
appellant had effectively
withdrawn from the robbery, but rather
whether he had withdrawn from the common purpose.
[36]
The robbery was the objective of the arrangement or the criminal
design that constitutes the common purpose. It was
the reason
for the coming into existence of the common criminal design, which
design included a number of other criminal or unlawful
acts that were
necessary, incidental or foreseeable in the execution of that common
purpose. In the execution of their criminal
design the
appellant and his co-conspirators committed the act of
conspiracy.
[37]
Conspiracy is in itself a punishable offence.
[38]
They further armed themselves with illegal firearms and proceeded to
commit further unlawful acts after they had withdrawn from
the
robbery. Those were criminal acts separate from the intended
robbery from which criminal charges and liability may follow
because
it forms part of the criminal design that arose from the agreement to
commit the robbery. It is this common purpose
that constitutes
the basis for the reciprocal attribution of the acts of one
participant to another.
[35]
Whether or not there was a disassociation or a withdrawal from the
common design is a factual
question which will depend on the
particular facts and the attendant circumstances, such as the scope
of the common purpose, the
manner and degree of an accused person’s
participation, and on how far the execution of the common purpose had
proceeded.
[39]
Snyman
[40]
formulates the relevant factors as follows: (1) the
accused must have a clear and unambiguous intention to withdraw;
(ii) the accused must perform some positive act of withdrawal;
(iii) the withdrawal must be voluntary;
(iv) the
withdrawal must take place before the course of events have reached
the stage when it is no longer possible to desist
from or frustrate
the commission of the crime; (v) the type of act required
for an effective withdrawal is dependent
on the circumstances of the
case; and (vi) the role played by the accused is
determinative of the type of conduct required
to demonstrate
withdrawal.
[36]
The list is not exhaustive. Generally, the court will proceed
from the premise that “…
the
greater the accused’s participation, and the further the
commission of the crime has progressed, then much more will be
required of an accused to constitute an effective disassociation.
He may even be required to take steps to prevent the commission
of
the crime or its completion. It is in this sense a matter of
degree and in a borderline case calls for a sensible and
just value
judgment.”
[41]
[37]
The appellant’s conduct, after they had left the scene where
they were lying in wait for
the cash-in transit van, shows that he
remained a willing participant in the joint venture. When they
were pursued by the
police in their attempt to leave the area, the
appellant and his co-conspirators attempted to evade lawful arrest by
fleeing the
scene, and used their firearms to shoot at the police.
The appellant continued to remain with his co-conspirators, even
after
their vehicle had come to a stop, and the occupants had
alighted therefrom, and continued shooting at the police. The
occupants
of the vehicle, which included the appellant, then boarded
the back of the vehicle, and it once again drove away. The
vehicle
was only abandoned some distance further away where the
occupants fled into the forest, but not before they again shot at
their
pursuers.
[38]
The appellant’s departure from the place of the intended crime
is a neutral factor, and
was not done voluntarily and with the
intention to withdraw from the overall common objective. It was
motivated by flight,
intended to evade detection and
apprehension.
[42]
He consequently remained responsible for all the acts done by his
co-conspirators which fell within the scope of the common
design.
Another feature in this context is that the role played by the
appellant in the venture was not insignificant.
[43]
As, stated earlier, the evidence was that he was present at the
meeting where the robbery was discussed and agreed upon.
According to the witnesses Madwantsi, the appellant and accused
number 6 were the main planners of the robbery. He was also
one
of the persons who organised the Isuzu vehicle, in which he
eventually travelled to the place where the plan was to hold up
the
money van.
[39]
It is clear in my view from the evidence that the appellant did not
disassociate himself from
the common purpose. That leaves the
charges under the Firearms Control Act. It is again clear from
the evidence that
the appellant was himself in possession of a
firearm and its ammunition which he had used to discharge shots at
the police officials
who were in pursuit of him and his
co-conspirators. It is accordingly not necessary to consider
whether he was also a joint
possessor of any of the firearms used by
any of his co-conspirators, or whether there existed a common purpose
between the members
of the group to possess all the guns.
[44]
[40]
It is a question that presents a number of difficulties, both
conceptual and on a practical level.
In
S
v Nkosi
[45]
two requirements were formulated for the possession of firearms by a
group in the context of common purpose: (a) the intention
of
the group to exercise possession of the firearms through the actual
detentor, and (b), the intention of the actual detentor
to hold the
firearms on behalf of the group. What this means,
according to the Constitutional Court in
Makhubela
[46]
,
is that because the offences of unlawful possession of firearms and
ammunition are circumstance offences, possession has to be
personal
or joint, and that it is “…
not
enough to establish joint possession that the firearm was possessed
by only one member in a criminal group in the furtherance
of a
criminal purpose with others.”
The
application of the two requirements has resulted in startling
findings, like the one in
S
v Kwanda
[47]
that:
“
The
fact, that the appellant conspired with his co-accused to commit
robbery, and even assuming that he was aware that some of his
co-accused possessed firearms for the purpose of committing the
robbery, does not lead to the inference that he possessed such
firearms jointly with his co-accused.”
[41]
As a legal concept, possession consists of two core elements, the
exercise of physical control
(
corpus
)
over an article with the intention (
animus
)
to do so. The concept of possession in a criminal context as an
element (the
actus
reus
)
of the offence in question is no different. In short, it is the
exercise of the required degree of control over an object,
direct or
mediate through another, together with the intention to do so.
[48]
Possession is a factual question. Like any other fact, in can
be established by circumstantial evidence, or by a combination
of
direct and circumstantial evidence.
[49]
There will seldom be direct evidence that the group had the intention
to exercise possession of a firearm through the actual
detentor, or
that the latter had the intention to hold it on behalf of the group.
Intention is a state of mind that can be
inferred objectively from
the conduct of the accused and his co-perpetrators. The
existence of the requisite intention is
a question of fact and
degree, and in most cases the outcome will inevitably depend on an
inference drawn from other facts found
to have been proved.
[50]
[42]
It matters not that those facts may also be relevant to establish the
existence of a common purpose
in relation to crimes other than the
unauthorised possession of a firearm and ammunition. It is not
the fact that an accused
shared a common purpose with his
co-perpetrators to commit a crime that proves that he also jointly
possessed a firearm and ammunition
with his co-perpetrators.
The common purpose is a fact that forms part of the body of
evidence. The question is whether
the facts found to have been
proved justify an inference, by applying the test in
R
v Blom
,
[51]
that the accused had the requisite
animus
to
establish joint possession as envisaged in
Nkosi
.
[52]
The finding made must account for all the relevant evidence,
including the evidence of the accused, or the lack thereof,
which may
be relevant to his state of mind. There is no reason why that
evidence should not also include evidence of what
the terms and the
ambit of an agreed criminal design were in any particular case.
[43]
On the facts of the present matter, I am of the view that the
inescapable inference that must
be drawn from the evidence as a whole
is that the group and the individual participants in the common
purpose had the necessary
intention (
animus
)
and control required for a conviction on the basis of joint
possession as postulated in
Nkosi
.
The group agreed to acquire firearms that were to be used in the
execution of the primary offence of robbery, the elements
of which
offence required the theft of the money by means of an act of force.
The firearms were necessary instruments in
the execution of the
robbery in the manner it was planned.
[44]
Conceptually the question must be asked whether joint possession and
the requirements formulated
in
Nkosi
must at all find application in the context of an application of the
principles underlying the common purpose doctrine. In
the
context of the present matter the right question to ask may
accordingly be whether the possession of the firearms and the
ammunition by one member of the group is a criminal act (
actus
reus
)
that falls with the scope of the group’s common design, and
must as a result be imputed to all the other members of the
group.
The doctrine after all rests upon the legal fiction that by
association one member of the group is held liable of
the criminal
act (
actus
reus
),
of another. Liability for the act of another arises by
operation of law, and is not based on the individual acts of the
participants in the criminal design. A factual scenario that often
seems to be the cause of befuddlement is where it is not established
on the evidence that one or more of the members of a group were aware
of another’s possession of a firearm. The answer
to that
question, it is suggested, will inevitably lie in the scope of the
common purpose, and the element of
mens
rea
as
it applies to every other definitional element of the crime in
question. Ultimately the question in every case remains
whether
or not it can be concluded on the evidence beyond a reasonable doubt
that each individual accused had the required
mens
rea
for
the offence in question.
[53]
[45]
As stated, it is not necessary on the facts of this case to say
anything further in this regard.
Accordingly, the appellant’s
convictions and the sentence imposed on counts 9 and 10 must also
stand. That finally
brings me to the question of sentence.
In argument the issue was confined to whether or not the trial court
erred in failing
to depart from the prescribed minimum sentence on
the murder charge. The remainder of the sentences were quite
clearly appropriate
in the circumstances of the matter, and it was
not suggested that there exists any reason to interfere therewith.
[46]
In terms of section 51 of the Criminal Law Amendment Act
[54]
a sentencing court is obliged to impose a mandatory sentence of life
imprisonment for murder under certain circumstances, unless
it is
satisfied that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence. Part
I of Schedule
2 of the Act includes the circumstance where a law enforcement
officer was the victim, and the offence was committed
in the
execution of a common purpose.
[47]
It was submitted that the prescribed sentence is excessive, and that
the trial court should have
found that the fact that the appellant
had no previous convictions, and that he had spent 6 years in custody
before his trial was
finalised, constituted substantial and
compelling circumstances. It is evident from its reasons for
sentence that the trial
court gave consideration to both these
factors. I am not persuaded that the trial court in any way
misdirected itself in
the enquiry as envisaged in section 51 of the
Criminal Law Amendment Act. Considering the personal
circumstances of the appellant
weighed against the serious nature of
the crime, the interests of society and the other factors relevant to
the imposition of the
sentence in this matter, the prescribed
sentence cannot be said to be disproportionate to the crime, or put
differently, inappropriate,
in that its imposition would amount to an
injustice.
[48]
In the result it is ordered that:
[48.1]
The appeal against the conviction of the appellant on the charge of
attempted robbery with aggravating circumstances
(count 8) is upheld,
and the conviction and the sentence of 15 years’ imprisonment
that was imposed in respect thereof, is
set aside.
[48.2]
The appeal against the convictions and the sentences imposed on the
charges of murder (count 1), attempted murder (counts
3 to 6), and
the unlawful possession of a firearm and ammunition (counts 9 and
10), is dismissed, and the said convictions and
the sentences are
confirmed.
D VAN ZYL
DEPUTY
JUDGE PRESIDENT
I
agree:
I SCHOEMAN
JUDGE
OF THE HIGH COURT
I
agree:
P H S ZILWA
JUDGE
OF THE HIGH COURT
Counsel for the
Appellant:
Attorney L. Malala
Instructed
by:
Mvuzo Notyesi Inc.
Old
T.H. Madala Chambers
14
Durham Street
MTHATHA
Counsel for the
Respondents:
Advocate S. Nolutshungu
Instructed
by:
Director of Public Prosecutions
Sisson
Street
Fortgale
MTHATHA
Date
Heard:
28 October 2020
Judgment
Delivered:
9 March 2021
[1]
Act
60 of 2000.
[2]
S
v Makamba and Others
(29/2007) ECD (20 September 2016).
[3]
S
v Makamba and Others supra at para [44].
[4]
See
section 256
of the
Criminal Procedure Act 51 of 1977
and section 18
(1) of the Riotous Assemblies Act 17 of 1956. See also
Snyman Criminal Law 6
th
ed at page 276.
[5]
S
v Du Plessis
1981 (3) SA 382
(A) at 399 H – 400 B.
[6]
S
v MacDonald
1980 (2) SA 939
(A) at 945 G.
[7]
R
v Katz
1959
(3) SA 408
(C) at 422 H.
[8]
Compare
the factual scenarios in the cases referred to by Snyman op cit at
page 280.
[9]
R
v Schoombie
1945 AD 541
at 547 – 548.
[10]
S
v Thebus and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) at para
[18]
fn 19.
See also
Tshabalala
v S; Ntuli v S
2020 (5) SA 1
(CC) at paras [46] and [47].
[11]
Burchell
and Milton: Principles of Criminal Law 5
th
ed at page 483. See also Snyman op cit at page 258.
[12]
Supra
at para [19].
[13]
Burchell
and Milton op cit at page 477.
[14]
Snyman
op cit at page 257.
[15]
Tshabalala
supra at para [49].
[16]
S
v Moumbaris and Others
1974 (1) SA 681
(T) at 687 A, and
S
v Sibuyi
1993 (1) SACR 235
(A) at 249 h.
[17]
S
v Mambo and Others
2006 (2) SACR 563
(SCA) at para [17], and
S
v Maelangwe
1999 (1) SACR 133
(NC) at 150 i-j.
[18]
“
The
liability of an associate in a common purpose to commit an unlawful
act depends upon his own culpability”
Snyman op cit at page 261 and the cases referred to in footnote 44.
[19]
1989
(1) SA 687
(A) at 705 I – 706 C.
[20]
As
correctly pointed out in
S
v Mzwempi
2011 (2) SACR 237
(ECM) at para [72], the fifth requirement of
mens
rea
is a definitional element of any crime which must be proved in any
event, and that consequently, it is not truly a requirement
for the
existence of common purpose in its form of active association.
[21]
(115/16)
[2017] ZASCA 75
(1 June 2017).
[22]
At
para [41].
[23]
S
v Robinson
1968 (1) SA 666
(A) at 673 D – F.
[24]
With
reliance
inter
alia
on
Mzwempi
supra at para [53] Snyman is of the view that by contrast, if
reliance is placed on active association as the form of the common
purpose, the scope of the criminal design is narrower, and limited
to the specific conduct that constitutes the
actus
reus
of the crime in question. (at page 260). It is unnecessary in
the context of this case to express an opinion in this regard.
[25]
1969
(2) SA 637
(A) at 640 F - H.
[26]
See
also
S
v Majosi and Others
1991 (2) SACR 532
(A) at 536 j – 537 b;
S
v Molimi and Another
[2006] ZASCA 43
;
2006 (2) SACR 8
SCA at para [35], and
Nkabinde
supra at para [40].
[27]
S
v Malinga and Others
1963 (1) SA 692
(A) at 694 – 695;
S
v Maxaba
1981 (1) SA 1148
(A) at 1156;
S
v Petersen
1989 (3) SA 420
(A) at 425 E-F;
S
v Nzo and Another
1990 (3) SA 1
(A) at 7 C-D; and
Majosi
supra at 537 d.
[28]
S
v Maelangwe
1999
(1) SACR 133
(NC);
Makhubela
v S, Majeke v S
2017 (2) SACR 665
(CC). Also
R
v Shezi
1948 (2) SA 119
(A);
S
v Mgxwiti
1954 (1) SA 370
(A), and
R
v Motaung
1961 (2) SA 209
(A) at 210 H – 215 A.
[29]
Op
cit at page 260.
[30]
S
v Lungile and Another
1999 (2) SACR 597
(SCA) at 60
2
d. Also Mzwempi supra at para [54] and Snyman op cit at page
260.
[31]
Steph
van der Merwe “
Why
do we so often get common purpose wrong?”
Criminal Justice review No 2 of 2017.
[32]
S
v Molimi and Another
(249/05)
[2006] ZASCA 43
(29 March 2009), referred to with approval
by the Constitutional Court in
Makhubela
supra at para [35].
[33]
Such
persons may include the killing of a conspirator by a gunshot by a
fellow conspirator, or a policeman killed by a shot fired
by another
policeman. See
S
v Nkosi
2016
(1) SACR 301
(SCA) at paras [10] to [13].
[34]
S
v Lungile and Another
supra at para [17], quoted with approval in
Nkosi
supra at para [7].
[35]
Supra
at paras [40] to [41].
[36]
Snyman
op cit at page 263. See also
S
v Nduli and Others
1993 (2) SACR 501
(A) at 506 j – 507 a, and
S
v Nube
(091/15) [2015] ZASCA (30 September 2015).
[37]
The
criminal act (
actus
reus
)
of the offence of conspiracy consists of the concluding of an
agreement to commit a crime. See
S
v Ngobese
2019 (1) SACR 575
(GJ) at para [12].
[38]
Section
18 (2)(a) of the Riotous Assemblies Act. It reads
:
“
(2)
Any person who –
(a)
conspires with any other person to aid or procure the commission of
or to commit; or
(b) …;
any offence, whether
at common law or against a statute or statutory regulation, shall be
guilty of an offence and liable on conviction
to the punishment to
which a person convicted of actually committing that offence would
be liable.”
[39]
Nduli
supra at 504 e – f, and
Nube
supra at para [20].
[40]
Op
cit at page 263.
[41]
S
v Musingadi and Others
2005 (1) SACR 395
(SCA) at para [39].
[42]
Nzo
supra at 10;
Lungile
supra at 603 g – h, and
Musingadi
supra at 408 I – j.
[43]
S
v
Beahan
1992 (1) SACR 307
(ZS) at 324 g.
[44]
S
v Makhubela and Another
2017 (2) SACR 665
(CC) at para [46].
[45]
1998
(1) SACR 284
(W). See also
S
v Mbuli
2003 (1) SACR 97
(SCA) and
S
v Ramoba
2017 (2) SACR 353 (SCA).
[46]
Supra
at para [48] quoting with approval from Burchell and Milton op cit
at page 484.
[47]
2013
(1) SACR 137
(SCA) at para [5].
[48]
S
v Adams
1986 (4) SA 882
(A) at 890 G-H.
[49]
S
v Hoosain
1987 (3) SA 1
(AD) and
S
v Humphreys
2013 (2) SACR 1
(SCA) at para [13].
[50]
See
Nkosi and Mbuli
supra.
[51]
1939
AD 188
(at 202 to 203).
[52]
Supra
at 287 b-c.
[53]
S
v Adams
supra at 891 H – I.
[54]
Act
105 of 1977.