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[2018] ZAGPJHC 624
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Ngobese v S (A28/2018) [2018] ZAGPJHC 624; [2019] 1 All SA 517 (GJ); 2019 (1) SACR 575 (GJ) (7 December 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
A
28/2018
In the matter
between:
NGOBESE,
SIFISO
QUINTON
Appellant
and
THE
STATE
Respondent
J U D G M E N T
SPILG
J
:
INTRODUCTION
1.
The appellant had been
charged with a main count of murder. It was alleged that he had
intentionally and unlawfully killed the late
Detective Major Moshe
Segapo (refered to during the trial as “
Moses”
).
He was also charged with defeating the ends of justice and with the
unlawful possession of a firearm and ammunition. At the end
of the
State case he was discharged on all these counts.
2.
This left the alternative
charge to the main count; namely, that of conspiracy to murder.
In
regard to this charge the State alleged that during the period from
January 2011 until the deceased was killed in December of
that year,
the appellant had conspired “
with other persons
to aid or procure
the
commission of or to
commit the offence of murder in respect of the deceased”
in
contravention of s 18(2) of the Riotous Assemblies Act 17 of 1956.
3.
Twala J convicted the
appellant of this offence and sentenced him to 22 years imprisonment
of which five years were suspended.
An application for leave to appeal was
dismissed, but subsequently the Supreme Court of Appeal granted the
appellant leave to appeal
to this court under
s 316(8)
of the
Criminal Procedure Act 51 of 1977
against both conviction and
sentence. Unfortunately there is no indication from the SCA as to the
considerations which prompted
the granting of leave to appeal.
GROUNDS OF APPEAL
4.
Mr van Schalkwyk,
who is the appellant’s attorney, argued that there was not a
meeting of minds between the appellant
and the person he allegedly
approached, namely one Zungu, to kill the deceased. It was submitted
that at no stage did either Zungu
or any of the persons who allegedly
were approached to assassinate the deceased have the requisite
intention to kill.
The submission is that the conviction
of conspiracy cannot be supported by the evidence; only a finding of
attempted conspiracy.
5.
It was also argued that if
the appeal against conviction was successful then the effective
sentence of 15 years is shockingly inappropriate
and that a
significantly more lenient sentence should be imposed.
6.
It is evident from the
argument that the appellant does not strenuously challenge the trial
court’s factual findings. The
issue is rather a legal one to
determine when the crime of conspiracy is completed.
I will therefore first consider the
elements of the offence and then deal with the factual findings.
ELEMENTS
OF THE CONSPIRACY OFFENCE
7.
The
State relied on the statutory offence created by s 18(2) (a) of the
Riotous Assemblies Act 17 of 1956. Although the title of
the Act
suggests that it is concerned with the gathering of persons for
purposes of fermenting civil unrest it is well established
that the
sub-section in question is wide enough to cover the offence of
conspiracy to commit any crime including that of murder.
[1]
8.
Section 18 is headed:
“
Attempt,
conspiracy and inducing another person to commit offence”
The salient provisions of subsection
2(a) for present purposes read:
“
Any
person who… conspires with any other person to
aid
or procure
the
commission of or to commit …. any offence, whether at common
law or …., 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”
(emphasis added)
By contrast s 18 (2)(b) provides that
an offence is also committed and will be subject to the same sanction
if a person;
“
incites,
instigates, commands, or procures any other person to commit …”
any such offence.
9.
It is evident that ss
(2)(a) deals with conspiracies while ss (2)(b) deals with incitement
or procurement and the like.
10.
The
broad wording of ss (2)(a) also makes it evident that aside from a
person being culpable if he conspires with another
to commit the
offence alone, he will also commit the statutory offence of
conspiracy if the unlawful agreement involves executing
only a step
in the plan, or is but one of a number of separately concluded
agreements with others to attain the same unlawfully
agreed
objective.
[2]
It will also suffice if a preparatory step is taken towards achieving
the unlawful objective agreed upon or in arranging that one
of the
conspirators will conclude another unlawful agreement with a third
person who will actually do the deed.
11.
The
statutory offence finds its origins in the common law
[3]
.
The Act did not purport to alter the ordinary requirements of
actus
reus
and
mens
rea
in
common law offences.
[4]
Accordingly
the prosecution is required to prove beyond a reasonable doubt that
the accused committed the unlawful act and that
he is culpable for
that act. Leaving aside criminal capacity, this effectively means
that the State must prove that the accused
intended “
to
perpetrate the unlawful conduct or cause the unlawful
consequence
.”
[5]
12.
The requirement of
intention in respect of the offence of a conspiracy is satisfied
provided the accused;
a.
has the intention to
commit the crime or assist in its commission; and
b.
intends
to conspire with another person to attain that objective.
[6]
Intention
in the form of
dolus
eventualis
is
sufficient.
[7]
13.
However
in dealing with the crime of conspiracy text book writers require not
only that the offender must intend these consequences
in order to
satisfy the element of
mens
rea
but, in order to satisfy the
actus
reus
element
of the offence, at least one of his co-conspirators must have
subjectively agreed to engage in the conspiracy.
[8]
In other words, the authors appear to
require a subjective state of mind on the part of the co-conspirator
in order to render the
conduct of the accused unlawful.
Suffusing the
actus reus
with a
subjective mental element in order to render the act unlawful is
explained only on the basis that a conspiracy requires a
meeting of
the minds.
One should however bear in mind that
with the crime of conspiracy, the unlawful act consists of concluding
an
agreement
to commit a specific crime (or to assist in its
commission). In other words not only must there be the
mens rea
to commit the crime in question but the
actus reus
must
consist of an agreement, between at least the accused and one other
person, to do so.
14.
In
our law of contract, an agreement requires “
consensus
ad idem”
[9]
or
a “
concurrence
of intention”
[10]
which, as I attempt to demonstrate later, does not have regard to the
inner workings of the mind, but rather their external manifestation,
save in certain limited cases, such as mutual error or actionable
misrepresentation.
15.
As already mentioned,
prior to the legislative enactment our common law recognised the
crime of conspiracy. And since at least the
full bench decision of R
v Harris (
1927)
48 NLR 330
it is considered that the offence can only be committed if
there is “
actual
”
agreement not an “
apparent
”
agreement.
16.
Burchell refers only to
Harris
in
support of this proposition. Snyman adds the case of
S
v Moumbaris and others
1974 (1) SA 681
(T) at 687. I am unable to find this proposition
being advanced in
Moumbaris
.
On the contrary Boshoff J (at the time) considered that an “
agreement
necessary for a contract …. would be sufficient, but, judging
by the manner in which a conspiracy may be proved,
it would appear
that something less would be sufficient”.
The
common law as to what constitutes consensus or the necessary mental
element for the purposes of concluding a binding agreement
is
considered later.
The
court in
Harris
held
that it was insufficient if the prosecution could only demonstrate
the intention of the accused to procure the services of
another to
assist in committing a crime when the alleged co-conspirator was a
police informer who feigned agreement. The court
therefore felt
compelled to reduce the conviction to one of attempted conspiracy,
although the sentence imposed was left intact.
[11]
17.
The
authors consider that the position under statute is no different and
at present our law, as stated in
Harris
and by our text-book writers, remains that the offence can only be
committed when there is an “
actual
concurrence of minds in an agreement to do the act in question”
[12]
.
It is also put that “
there
must be a meeting of minds”
which is understood to mean that there must be subjective intent not
only on the part of the accused (which is axiomatic as he
must in any
event have the necessary
mens
rea
),
but also his co-conspirator, to conspire to commit an offence.
[13]
18.
If regard is had to the
present onslaught our society faces in relation to serious crime I
consider it appropriate to express my
reservations regarding the
correctness of
Harris
and an interpretation
of s18 (2) (a) which requires the prosecution to prove subjective
intent on the part of any co-conspirator
beyond a reasonable doubt,
even if not all the alleged conspirators are before the court.
19.
I would suggest that the
starting point, as with common law crimes (save where negligence will
suffice) is that the
mens
rea
element is
satisfied if the accused subjectively intended to conspire with any
other person to commit the crime in question. The
requirement for
there to come into existence an agreement with another
person does not form part of the element of
intention but is an
element constituting the criminal conduct.
20.
Criminal
conduct, or the
actus
reus,
is constituted by an act (or omission) and therefore is understood in
our criminal law to be an objectively discernible phenomenon
vitiated
only by involuntary conduct on the part of the offender.
[14]
21.
The
actus
reus
is
also a juristic notion which can take a myriad forms; from a culpable
act of commission to an omission to act when there was
a legal duty
to do so. The conduct must consist of some external manifestation of
the accused’s intention, for otherwise
a person will be
punished for his thoughts alone.
[15]
22.
While
the
actus
reus
for
any particular crime is defined by reference to an act or omission,
to constitute a punishable or unlawful act there must be,
according
to Burchell, a sufficient external manifestation “
of
the evil mind
”.
[16]
Snyman
structures the foundational principles of criminal liability somewhat
differently. In doing so the author draws a distinction
between the
act, (which complies with the definitional element of the crime in
question and includes whether the accused’s
thoughts have been
transformed into an act or conduct
[17]
)
and the separate enquiry as to whether the accused’s conduct
was also unlawful
[18]
.
Snyman explains that: “
The
fact that the act complies with the definition of the crime means no
more than that …. it does not yet mean that the
act is
unlawful. Before an act can be described as unlawful, it must not
only conform to the definitional element but it must also
comply with
the quite distinct criterion for determining unlawfulness
.”
23.
Unlike most crimes which
enquire only into the conduct of the offender a conspiracy requires
an agreement concluded with another
person. Nonetheless it remains
against principle to determine the unlawful conduct of the accused by
enquiring into the subjective
workings of the co-conspirators mind
when he signified assent.
24.
The
enquiry into
mens
rea
and
the
actus
reus,
at
least as a matter of principle, remain confined to the intention and
actions of the accused himself. The question one asks is
then: “What
conduct on the part of the accused will constitute an unlawful
conspiracy? “
[19]
25.
For
sake of completeness there are some offences which require proof of
causation and others not. Burchell adopts the conventional
distinction between unlawful conduct which results in a consequence
and that which consists of an unlawful circumstance
[20]
.
Snyman adopts the terminology of materially defined crimes and
formally defined crimes.
[21]
In both instances the former refers to
conduct which causes a specific result (such as death) although no
specific conduct is prohibited.
The latter refers to conduct which is
prohibited irrespective of result. A conspiracy would fall under the
latter and therefore
no additional element is required to complete
the offence.
26.
The conclusion of the
agreement to engage in an unlawful activity therefore suffices to
establish a conspiracy. No further act is
required. The only bearing
subsequent conduct may have is to provide the evidence necessary to
prove
mens rea
and
the unlawful conduct. See
S
v Sibuyi
1993 (1) SACR
235
(A) at 249E and particularly the statement by Boshoff J in
Moumbaris
at
687A that
“
As
far as proof goes, conspiracy 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.”
[22]
27.
If our law considers that
an agreement suffices then surely, in cases where there was
ostensibly agreement, but it cannot be said
that there was a meeting
of the minds for whatever reason, the subsequent conduct by the
accused himself in furtherance of the
conspiracy should satisfy the
actus reus
.
And if it were otherwise then, as suggested earlier, it would
impermissibly allow the co-conspirators’
mens
rea
to intrude into a
determination of whether the accused’s subsequent actions, such
as handing a loaded firearm and a picture
of the victim to his
co-conspirator, satisfy the requirements of unlawful conduct.
Moreover the proposition that a
conspiracy cannot be committed by one person alone does not take the
debate further. It either states
the obvious, that an unexpressed
criminal intent to act in concert without actually approaching anyone
else cannot constitute a
crime, or begs the question as to the nature
of the unlawful act required where the accused has the intention to
conspire with
another to commit a crime and the other party has
unequivocally signified his assent.
28.
Accordingly,
as a matter of general principle, it is not necessarily axiomatic
that if the only other party to a conspiracy was
a police informer
that no crime of conspiracy has been proven, even if the accused took
further steps in execution of the conspiracy.
It appears that two
considerations are involved. The first is the extent to which
society considers it necessary to criminalise
the unexecuted unlawful
thoughts of a person when it is not manifested by any unlawful
conduct, save for a discussion with someone
he wishes to rope in so
as to achieve his unlawful objective. It would include a
consideration of the checks and balances that
may be required (such
as some subsequent act in furtherance of the agreement reached
[23]
).
This is left to the legislature to determine if the law, properly
understood, is inadequate.
The second consideration is the
desirability of having a consistent approach in the application of
criminal law principles and,
in the present case, to the basic common
law principles of offer and acceptance. Whether an agreement, or
consensus
, has been reached is a conclusion of law drawn from
a finding that there was an offer by one party and that its essential
terms
were accepted by the other.
29.
It therefore appears that
the
actus reus
in
respect of a conspiracy may be sufficiently established by the
conclusion of the agreement to commit the crime itself, but is
not
limited to that alone. The
actus
reus
may be found in
additional acts performed by one of the conspirators in furtherance
of the purported agreement, and of which the
accused was aware and
did not disassociate from.
30.
In order to consider
whether the Act requires that both parties subjectively intend to
agree to conspire it is necessary to consider
the state of mind
required of the parties before it can be said that they have
concluded a binding agreement.
REQUIREMENTS FOR AN AGREEMENT UNDER
COMMON LAW
31.
Although
our civil law of contract requires that the parties enter into the
transaction “
seriously
and deliberately and with the intention that a lawful obligation
should be established”
[24]
,
a
contract comes into existence once an offer made by one person is
accepted by the other; the manifestation of acceptance being
by words
or conduct.
Our law does not apply a subjective
test of mutuality of assent to determine if a binding agreement has
come into existence; apparent
agreement is sufficient. This involves
a two-stage enquiry in order to determine legal assent. If there was
actual agreement then
caedit questio;
if not then one must
still ask whether a reasonable person in the position of the first
party believed, having regard to the words
or conduct of the other
party, that there was assent. There are circumstances where a
court will enforce a contract even
though the parties did not in fact
agree. This is referred to as quasi-mutual assent or apparent
agreement: In law it is as binding
between the parties as actual
assent.
Accordingly,
in the law of contract, provided acceptance is communicated by word
or conduct and is clear, unambiguous and corresponds
with the terms
of the offer, any unexpressed residual apprehension by either party
is of no consequence: this is adequately demonstrate
by the rules
regarding quasi-mutual assent or apparent agreement
[25]
.
An overt statement of acceptance will suffice and it is unnecessary
to establish whether subjectively that party intended to accept.
[26]
32.
This was succinctly
addressed by Wessels in
The
Law of Contract
(2
nd
ed 1951) at 62:
“
Although
the minds of the parties must come together, courts of law can only
judge from external facts whether this has or has not
occurred. In
practice, therefore,
it
is the manifestation of their wills and not their unexpressed will
which is of importance
”.
[27]
(emphasis added)
Christie
at 31 to 32 writes:
“
There
is a wealth of authority for regarding agreement by consent as the
foundation of contract. This having been said it must immediately
be
added that the concept of agreement by consent, or true agreement, or
a meeting of the minds
,
or a coincidence of the wills, or consensus ad idem (these phrases
being interchangeable) is more a philosophical than a legal
concept.
(emphasis added)
A lawyer needs proof before
concluding that a particular state of affairs exist, and when the
state of affairs in question is something
as subjective as the state
of mind of two or more parties on a particular occasion, or
occasions, the lawyer will find that, in
truth, the search is not for
agreement by consent but for evidence of such agreement.”
33.
In
Allen
v Sixteen Stirling Investments (Pty) Ltd
1974(4)
SA 164 (D) at 172 Howard J after confirming that “
our
law follows a generally objective approach to the creation or
existence of contracts (see National & Overseas Distributors
Corporation (Pty) Ltd v Potato Board
[28]
)”
then
continued, that one “
cannot
accept that this approach is so uncompromising”
so
as to preclude reliance on mutual error as to the subject matter.
34.
For
present purposes, where an express agreement and not a tacit one is
contended for, seen from the perspective of a
bona
fide
person
seeking to uphold the contract, it may be said that where the other
party expressly agreed to enter into a “
common
design”
[29]
with
the intention of being bound by it (
animus
contrahendi
[30]
)
then
he will be held to the offer he made or the acceptance he gave, save
in those cases where the law allows a mutual error to
vitiate a
contract.
35.
The statement by
Watermeyer ACJ in
Reid
Bros (SA) Ltd v Fischer Bearings Co Ltd
1911
AD 61
at 70 appears most apposite for the purposes of a case which is
focused on whether an agreement can be said to have been concluded
by
the person who makes the proposal;
“
a binding contract is as a
rule constituted by the acceptance of the offer”
while
acceptance in order to conclude a contract is constituted, at its
most basic, by a simple act of communicating to the offeror
such
acceptance of the offer made. It is then said that the
parties are, for the purposes of our law of contract, to
be “
ad
idem”.
[31]
CONCLUSION OF AN AGREEMENT IN ORDER
TO SATISFY THE
ACTUS REUS
36.
Cases
in criminal law acknowledge that there need not be direct evidence of
an actual agreement in order to sustain a conviction
based on
conspiracy, nor need the co-conspirator be arraigned in the same
trial nor that every co-conspirator be capable of identification
in
an indictment
[32]
.
Nonetheless
our law still requires that the conduct of
both
the
accused and alleged co-conspirator establish the conclusion of an
agreement to commit the offence. Accordingly proof beyond
a
reasonable doubt of either a tacit or an implied agreement will
suffice
[33]
.
Of course if the offence of conspiracy requires
both
parties to subjectively intend to conclude a binding agreement then
the direct evidence of an alleged co-conspirator that he was
operating undercover as a police trap, by definition, would preclude
a finding of conspiracy.
37.
The ultimate objective of
law enforcement must be to prevent crime. Practically speaking, the
most effective and direct means of
law enforcement in relation to
serious crimes is to take preventative measures such as infiltrating
criminal syndicates and apprehending
the offenders prior to them
committing an offence.
The case of
S v Bilankulu
which
involved the infiltration by a game ranger, at great personal risk,
of a rhino poaching syndicate demonstrates the difficulties
facing
law enforcement agencies in combatting crime by means of undercover
operations.
In that case, if there had been no
positive identification of the two accused at the moment the crime
was committed, they might
have received a slap on the wrist for
attempting to conspire with the operative to kill rhino.
38.
It must however be
accepted that there is a natural aversion to treat an agreement to
commit a crime as an offence without evidence
of any other link
between the accused and the actual perpetration of a crime. The facts
in
Harris
posed
no such difficulty; hence the sentence remaining unaltered.
39.
In my respectful view what
requires consideration in the final analysis is the seriousness of
the offender’s commitment to
carry out the crime or have a
proxy do it for him and the presence of an overt unlawful act.
Evidentially this ought to be satisfied
by having regard to the
intention of the accused demonstrated by his subjective belief that
he had obtained the agreement of the
other person to participate in
the crime in question and by taking some step, or associating himself
with the act of his alleged
co-conspirator, in furtherance of
that pact. Ordinarily this will be the case.
If an accused takes no further steps
after the alleged conspiracy agreement is concluded then he is likely
to successfully
argue either that he lacked the necessary
intent, or that it was idle talk, or that there was no such
discussion. Unless a co-conspirator
recanted immediately after the
pact was made and informed the police who then acted swiftly to
apprehend the accused, a trier of
fact would look for evidence of
some overt act of preparation on the part of the accused in
furtherance of the alleged concluded
agreement, even if in terms of
Sibuyi
it is not a specific legal requirement for the
commission of the offence.
The
actual extent of preparation, the number of attempts to solicit
others to participate in the criminal enterprise and the purpose
of
the conspiracy, including what the accused would gain from it would,
if regard is had to
Sibuyi,
be
relevant when considering the triad of factors for purposes of
imposing an appropriate sentence. At that stage the court takes
care
not to assume that the conspiracy had been successfully carried out,
unless the case fits into the
Harris
mould.
[34]
40.
If
the accused’s subjective intention to procure the active
involvement of another person in order to commit a crime satisfies
the element of
mens
rea
then
the
actus
reus (
i.e. the physical or external act which constitutes its
execution or implementation) comprises the voluntary conduct
of
the accused
;
even if it is only an act of association as with an accomplice
on a charge of murder or robbery with aggravating circumstances
who
was outside standing look-out but was aware that one of his
colleagues was carrying a weapon.
[35]
41.
Earlier I postulated some
of the concerns that might be raised about adopting such an approach.
While it is axiomatic that the conduct
under scrutiny in all common law crimes is that of the accused, the
conclusion of an agreement
to conspire is a bilateral act where
invariably it will be the co-conspirator who accepts the proposal.
This may have been one
of the unarticulated reasons for requiring
something more than just apparent assent.
Another
concern is that, juridically, idle talk may become elevated to
unlawful conduct, or that there is an unacceptably high risk
of
ordinary evidential safeguards being compromised if a conviction on a
charge of conspiracy requires only the uncorroborated
evidence of a
police informer; the probative value of which is already
questionable, if only because he has demonstrated, albeit
in other
circles, an ability to deceive.
[36]
42.
In my respectful view such
concerns are not met by making inroads into the ordinary requirement
that the
actus reus
comprises the unlawful
conduct of the accused himself. As pointed out by Boshoff J in
Moumbaris
,
and as appears from the reasoning of the then House of Lords in
Anderson
(see
below), the evidence will invariably include, even in cases of
feigned assent, some step taken by the accused or, if by the
co-conspirator, one with which the accused has associated himself, in
furtherance of the agreement.
Even in cases where the accused has
not taken a step after the pact was concluded, say because his
co-conspirator recanted shortly
afterwards when appreciating the
enormity of the crime to be committed, it is likely that there will
be concrete evidence of
prior
preparation on the part of
the accused that would have formed an integral part of the
plan.
Considered in this light one also
avoids the anomalous situation that arises where a conspiracy will
not be completed if, say, an
undercover operative was the first
person approached by the accused to commit a crime (even if there is
audio visual evidence of
a clear design with the accused explaining
in minute detail the manner in which a most horrendous crime is to be
committed), but
it will be completed if another person is present and
has also agreed to participate in the conspiracy, even if that
person’s
identity is not known. In the first case, must the
operative continue with the plan until another conspirator is
introduced by
the accused, even if the risk of exposure is great or
the operative is unsure whether he will be privy to agreements the
accused
may make with others to immediately execute the plan?
43.
A position which requires
some further step to be taken in furtherance of the conspiracy after
the agreement is concluded would
however impinge on case law which
holds that the offence is committed the moment the agreement is
concluded. On analysis in each
of these cases it appears that the
court was influenced by the fact that some step was taken in
furtherance of the agreement. This
is to be found in the cases dealt
with later.
THE LAW RELIED ON IN
HARRIS
44.
Our
law relating to the elements of the crime of conspiracy is based on
Harris.
I am unaware of any critical assessment of the case. Save for
S
v Alexander and others (2)
1965(2)
SA 818 (C), a cursory research of South African case law annotations
to
Harris
and
Plummer
indicates
that they have been applied only in respect of unrelated issues.
[37]
45.
Harris
was
concerned with an appellant who tried to bribe the prosecutor to go
easy on someone who would be appearing in his court. The
prosecutor
reported the proposition to his superiors which resulted in him being
asked to go along with the offer. This led to
one of the charges laid
against the appellant being that of conspiracy, and in respect of
which he was convicted.
On
appeal it was argued that the evidence did not support a conviction
for conspiring with the prosecutor to defeat the course of
justice
because the prosecutor was not a co-conspirator. The full bench
agreed that there could not be a conspiracy unless two
or more
persons are
ad
idem
as
to their object
[38]
.
The court held that:
“
It
is clear that whatever the appellant may have thought was the case,
Lockwood was not in agreement with him as to the obtaining
of monies
… to defeat the course of justice, but was entrapping
him”
.
[39]
46.
The
court however had little hesitation in convicting Harris for
attempting to commit the crime of conspiracy and declined
to reduce
the sentence imposed by the magistrate on the grounds that there was
“
no
reduction in the gravity of the offence”
.
[40]
47.
The
court in
Harris
relied
on 9
Halsbury’s
Laws of England
para
545 and
R
v Plummer
[1902]
2 KB 339
for the proposition that “
there
can be no conspiracy unless two or more persons are ad idem as to
their objective, that is, have come to some agreement
.”
[41]
48.
Three
accused were charged in
Plummer
with
a number of offences including conspiracy to defraud. Plummer pleaded
not guilty to the other charges but guilty to the charge
of
conspiracy. He was however not arraigned on the conspiracy count (to
which he had already pleaded guilty
[42]
)
prior to being called as a witness for the prosecution against his
two alleged co-conspirators who had pleaded not guilty.
On
their acquittal it was contended that Plummer’s plea of guilty
should be withdrawn and that he could not be convicted as
the only
other parties to the alleged conspiracy had been acquitted which, it
was argued,
per
se
negated the existence of an agreement; “
for
one alone cannot conspire”
.
[43]
49.
Firstly the case was
not about a police trap. The court was concerned with the effect of
the acquittal of all but one of the
alleged conspirators on the
remaining accused.
In
regard to the charge of conspiracy the court held that where two or
more persons are charged in the same indictment with conspiracy
and
they are said to be the only conspirators then “
if
all but one … are acquitted, no valid judgment can be passed
on the one remaining person, whether he has been convicted
by the
verdict of a jury or by his own confession”
.
[44]
Bruce
J reasoned that since a conviction can only be pursuant to the terms
of an indictment “
it
would be inconsistent and contradictory and so bad on its face”
[45]
to
find the only remaining accused guilty of the offence.
The
judge accepted that the acquittal of the others may have been solely
due to a lack of evidence but maintained that it would
result in an
inconsistent record. However, since only one valid record could be
drawn up this would negative mutual consent to
a common purpose by
all- thereby precluding a valid record being drawn up of a conviction
against the remaining accused.
[46]
50.
Both
Bruce and Wright JJ saw the issue in this light and were concerned
about the reach of their decision if co-conspirators were
tried
separately. However Wright J was prepared to regard the case before
the court as “
intermediate
between the case of a wholly joint trial and the case of separate
trials of the alleged co-conspirators”
[47]
.
The
reasoning was that as the co-conspirators were jointly indicted and
all pleaded not guilty to the five principal counts; “
there
was only one venire; they were all given in charge …. to the
same jury”
[48]
.
If
the appellant had been tried separately on the conspiracy charge and
had been convicted then according to Wright J “
his
conviction would have been good at the time”
and
that it “
is,
however, not clearly settled whether in such a case of separate
trials a subsequent acquittal of the other would not avoid the
effect
of the previous conviction of the appellant”.
[49]
Darling
J concurred with the more cautious approach adopted by Wright J while
the two remaining judges preferred to regard the issue
as a technical
one and concurred in the judgment of Wright J because “
we
are unable to answer the very learned and able judgments which have
been delivered by Wright and Bruce JJ. We concur in those
judgments
because we are unable to give satisfactory reasons for giving a
contrary view”.
They
were at pains to indicating that, in concurring, they placed “
great
reliance on the fact that there was a joint trial on one indictment
charging the three defendants jointly with conspiring
together, and
not alleging any conspiracy with other or unknown persons”
.
[50]
51.
The reasoning adopted by
the court is unfamiliar to our legal system. It can be explained on
the basis that in England until 1907
it was not possible to appeal a
decision on the basis of going behind the record and arguing that the
evidence did not justify
the conviction. An appellant was confined to
a “
writ of error”
which required a
repugnancy on the record. This was dealt with in depth by the House
of Lords in both
Shannon
and
Anderson
to which I will refer
later.
52.
It will be apparent that
Plummer
was not concerned with whether there had to be a subjective meeting
of the minds between at least two of the alleged co-conspirators.
The
case focused solely on the ramifications to the fair administration
of justice if a court found all but one of the conspirators
not
guilty of engaging in a conspiracy. The issue of whether the
prosecution was required to demonstrate that each participant
subjectively agreed to enter into a conspiracy or whether an external
manifestation of assent sufficed was not considered by any
member of
the court. Nor, in my respectful view, when regard is had to the
reasoning of each judge, is it possible to draw an inevitable
conclusion from the outcome of that case that agreement must be
subjectively established.
53.
Accordingly it would be
incorrect to construe
Plummer
as authority for the
proposition that the requirement of a concluded agreement to conspire
requires a meeting of the minds of the
accused and any other
participant tested subjectively in respect to both of them.
54.
More importantly
Plummer
was expressly overruled in
Shannon.
The crisp basis that A
could not be convicted if B was acquitted, in terms of the
Shannon
judgment, was to do
with the limited basis on which an appeal could be brought at the
time when
Plummer
was
decided.
As stated in
Shannon
at 1037:
“
This
rule appears to have been based on the ground that the conviction of
only one of two charged with conspiring together or of
only one of a
number of persons charged with conspiring together in the same
indictment meant that there was a repugnancy on the
record which
could only be corrected by quashing the conviction. In olden days it
was not possible to go behind the record and
to examine whether the
evidence justified a finding that one conspirator alone was guilty.
Proceedings by way of writ of error
were taken to correct the record.
Since the Criminal Appeal Act 1907, which abolished proceedings by
writ of error, it has been
possible for the appellate court to
examine and to consider the evidence against each conspirator tried.
”
And again at 1043:
“
But the Criminal Appeal Act
1907 abolished the system of review by writ of error (based on some
fault apparent on the face of the
record), and substituted a system
of review by way of examination of the evidence and of the
summing-up. The court of review was
no longer confined to scrutiny of
the formal record only or what it could glean from the occasional
case stated.”
SUBSEQUENT SOUTH AFRICAN AND
ENGLISH CASES AND AMERICAN LAW
55.
In
Alexander
at 821H-822A van
Heerden J (at the time) defined a conspiracy as:
“
..
an agreement between two
or more persons to commit a crime. The parties to the agreement must
be ad idem as to their object- Harris
v R
1927 NPD 330-
and in terms
of decisions in English Courts the agreement must be such that, if
lawful, it would be capable of being enforced.
It is not necessary,
to constitute a conspiracy, that anything should be done to put the
criminal design into execution, for the
conspiracy is complete as
soon as the persons concerned have agreed together.
56.
Two observations may be
made regarding
Alexander.
The first is that van Heerden J
applied the principle that a conspiracy was completed the moment
agreement is reached. It follows
that if one of the conspirators has
a change of heart later it does not negate the commission of the
offence.
The other is that the agreement is to
be understood as one which, if lawful, can be enforced. This
understanding of the offence
could be interpreted to mean that an
expressed acceptance by the co-conspirator, irrespective of his true
subjective intention,
should suffice.
57.
A decade after
Alexander
was decided the House
of Lords expressly overruled
Plummer
on the point of whether a conviction for conspiracy could
stand if the only other alleged conspirators to the plot
were
acquitted. See
R v
Shannon
[1974] 2 All
ER 1009
([1975] AC 717 See also
R
v Drew
[1985] 2 All ER
1061
(CA) at 1065f.
58.
The facts of
Shannon
were that the
respondent, advised by his lawyers, pleaded guilty to the charge of
conspiracy. It was evident that he fully appreciated
and understood
what he was doing by so pleading. He was sentenced to four years
imprisonment.
His alleged co-conspirator pleaded not
guilty to both the conspiracy charge and to a count charging him with
handling stolen goods.
The jury were unable to agree on their verdict
and T was retried a few days later. T was found not guilty of
handling stolen goods.
The prosecution offered no evidence against
him on the conspiracy charge and a formal verdict of not guilty was
entered on that
count.
The respondent appealed, contending
that as T had been found not guilty of conspiring with him, his own
conviction and sentence
following on his plea of guilty to conspiring
with T could not stand.
59.
The Court of Appeal had
overturned the conviction of the respondent on the grounds that it
was not competent to find the appellant
guilty where only two person
were alleged to have conspired to dishonestly handle stolen goods and
one had been acquitted for insufficiency
of evidence, even if the
appellant had pleaded guilty to the charge.
The court considered itself bound by a
wealth of authority and with great reluctance held that:
a.
It
should follow the long line of cases which held that where all but
one of those alleged to have conspired in the commission of
an
offence have been acquitted then the remaining person must also be
acquitted. It held that where all persons involved in a conspiracy
had been charged then at least two of them must be convicted or all
must be acquitted even if one of them had admitted guilt.
[51]
b.
The
question is “
not
one of proof
but
of the nature in law of the offence of conspiracy”.
The Court of Appeal was of the view that the question did not depend
on the rules of criminal procedure that obtained at the time
of the
earlier judgments The convictions were repugnant because of a
fundamental legal principle that “
there
cannot be a conspiracy unless two or more persons are proved to be
guilty of that conspiracy, once B is for any reason acquitted
of
conspiracy with A, A in law cannot be guilty of conspiracy with B
even though, apart from B's acquittal, A was prepared to admit
and
did admit his guilt. B's acquittal is a finding of no conspiracy not
merely a finding of no proof of conspiracy against B.
The long line
of cases shows that the principle derives from the nature of the
offence of conspiracy.
”
[52]
60.
The
Court of Appeal allowed an appeal and certified the following point
of law to be of general public importance:
'If
two persons alone (that is to say with no other persons named or
unnamed) are indicted for conspiracy together and the first
pleads
guilty but the second pleads not guilty and is subsequently tried and
acquitted, must the conviction of the first upon his
own confession
thereupon be quashed?'
[53]
61.
The matter came before the
House of Lords. Lord Salmon explained at 1048-9 the genesis of the
legal principle that there cannot
be a conviction of only one person
for conspiracy if every other alleged co-conspirator has been
acquitted:
“
By
the beginning of the 19th century it was accepted by the courts as a
firmly established legal principle that where A and B are
indicted
together for conspiring with each other and no one else, then,
whether they are tried together or separately, the conviction
of one
cannot stand if the other is acquitted (R v Grimes and Thompson;
R v Nichols; R v Cooke). The root of a conspiracy
is an
agreement between two or more persons to do an unlawful act or a
lawful act by unlawful means.
No man can conspire with
himself
. Accordingly, if
in the case postulated, nothing is known save that A has been
convicted and B acquitted, the result would appear
to be inconsistent
with and repugnant to justice. And so, sometimes, it may be even when
all the true facts are known.
In
the early days when there was no appeal in criminal cases,
the
sole method of challenging a conviction was by writ of error, which
gave the courts power to intervene only if there was some
apparent
inconsistency or repugnancy on the face of the record. The courts
could not look at the evidence, nor the summing-up:
all that they
could look at was the record. It was for this reason that the rule
was established from very early times that, if
the record disclosed
an apparent inconsistency or repugnancy on its face, the court must
intervene and quash the conviction
.
This rule, no doubt, had much to commend it when the court could look
only at the record to discover whether any injustice had
been done.
The rule, which involved a strictly technical approach
to the record, offered, in early times, the only means by which the
injustice
of a seemingly wrongful conviction could be remedied. This
rule became so firmly established that even after all reason for its
existence had long since disappeared, it continued to survive
.
Even after a case could be stated for the opinion of the court and,
still later, after the Court of Criminal Appeal was set up
and
invested with its very wide powers and writs of error were abolished,
the continued existence of the rule was assumed and has
been accepted
by our courts, without question, ever since. This appeal turns on
whether this acceptance of the rule was justifiable.
My
Lords, for my part,
I am convinced, that although there
was originally a sound reason for the existence of the rule, it had
probably disappeared by
the middle of the last century and certainly
by 1907
, when any
convicted person was given an absolute right of appeal on any
question of law and, by leave of the court, or on the certificate
of
the trial judge, a right of appeal on any question of fact or mixed
fact and law or on any other ground which appeared to the
court to be
a sufficient ground of appeal.
(emphasis added)
62.
Although the Court of
Appeal saw the issue as one of substantive law the House of Lords
nonetheless considered that its origin lay
in procedural rules which
had hardened into substantive law in order to achieve justice at a
time when no form of recourse to an
appeal lay other than to find a
repugnancy
ex facie
the
record. This appears clearly from the following passages of the
concurring judgment by Lord Simon where the following is expressed
at
1044:
“
May
I try to explain what I mean by adhesions, repercussions and
reactions? Maitland was wont to observe how rules of substantive
law
have seemed to grow in the interstices of procedure. Not only can the
substantive rule acquire a life of its own, but the rebuilding
of its
roothold is apt to endanger that life. Again, what I have called 'the
procedural issue' in the instant case illustrates
how unfortunate
consequence can ensue from what was proffered as beneficial reform.”
[54]
63.
The second point of
significance for present purposes is Lord Salmon’s statement
that the origin of the rule lay in the principle
that: “
No
man can conspire with himself”.
This
again demonstrates that the issue is not what the co-conspirator
subjectively thought but whether as a reality the accused
had engaged
with another person to execute an unlawful plan.
The passage from Lord Simon which is
set out at footnote 54 of this judgment demonstrates that where an
accused has freely and voluntarily
confessed to a conspiracy, the
state of mind of his co-conspirator is irrelevant. Accordingly it
should make no difference to his
conviction if it turns out that his
co-conspirator was a police operative who had no intention of seeing
the conspiracy through
to the actual commission of the offence.
64.
Another decade passed
before the House of Lords put a final nail into the
Plummer
coffin. This was
in the case of
R v
Anderson
[1985] 2 All
ER 961
([1986] AC 27).
In
Anderson
the appellant had
allegedly conspired with his three co-accused and other unknown
persons to effect the escape of a convicted felon.
The appellant’s
co-accused were all acquitted. However the appellant initially
elected to make an unsworn dock statement
in his defence in which he
claimed that while awaiting a bail application in an unrelated case
he was approached by one of the
co-accused, Mr Andaloussi, to
participate in a scheme to effect the latter’s escape and for
which he would be paid . The
appellant’s role was to acquire
material and implements needed for the escape such as diamond wire
and a tool to cut through
burglar bars as well as a rope and ladder.
After the appellant was released on
bail, he received 10% of his agreed fee. The appellant’s
involvement in the conspiracy
ended shortly after when he was injured
in a motor accident. His claimed intention was to obtain the diamond
wire and hand it over
in exchange for receiving half of the agreed
fee for his participation. On the evidence before it, the trial court
accepted that
on receipt of this further amount the appellant
intended to play no further part in the planned escape but leave
England and settle
in Spain.
The
appellant argued that he lacked the mental element to sustain a
conviction for conspiracy “
since
he never intended the escape plan, in which, according to what had
been agreed, he was to play a major part, should be carried
into
effect nor…. did he believe that, in the circumstances, the
plan to enable Andaloussi to escape could possibly succeed.”
[55]
65.
It is unnecessary to deal
with the procedure that was then followed by the trial judge save
that it resulted in a ruling and a consequent
re-arraignment at which
the appellant pleaded guilty.
The House of Lords concerned itself
with whether in law a conviction on the merits of the defence
initially raised by the accused
could be sustained.
66.
The
Court of Appeal dismissed the appeal but certified that its decision
raised a point of law of general pubic importance which
involved
inter
alia
the
question of whether a person who “
agrees”
with
two or more other people; “
who
themselves intend to pursue a course of conduct which will
necessarily involve the commission of an offence, and who has a
secret intention himself to participate in part only of that course
of conduct, is guilty himself of conspiracy to commit that
offence…?”
[56]
67.
In
order to appreciate the
ratio
of
the decision regarding the elements of the offence of conspiracy in
English law it is necessary to point out that shortly after
the House
of Lords decision in
Shannon
the common law offence of a conspiracy to commit a crime had been
abolished and replaced by a statutory offence under s 1
of the
Criminal Law Act of 1977 which, prior to its amendment in 1981
[57]
read:
“…
if a person agrees
with another person or persons that a course of conduct shall be
pursued which will necessarily amount to or
involve the commission of
any offence or offences by one or more of the parties to the
agreement if the agreement is carried out
in accordance with their
intentions, he is guilty of conspiracy to commit the offence or
offences in question”
68.
By
way of an introduction to the case: The House of Lords considered
that the first element of the statutory offence required no
more than
an agreement between at least two people that “
a
course
of conduct shall be pursued”
and
continued that it was important to “
resist
the temptation to introduce into this simple concept ideas derived
from the civil law of contract. Any number of persons
may agree that
a course of conduct shall be pursued without undertaking any
contractual liability”
[58]
.
This resonates with the view expressed by Boshoff J in
Moumbaris
regarding the interpretation of s 18(2)(a) of our Act to which I
referred earlier.
The
second element also posed little difficulty. The House of Lords said
that it is “
necessary
that any party to the conspiracy shall have assented to play his part
in the agreed course of conduct, however innocent
in itself, knowing
that the part to be played by one or more of the others will amount
to or involve the commission of an offence”.
[59]
The
court explained that it was however unnecessary that more than one of
the participants in the agreed course of conduct was to
commit the
substantive offence to which the conspiracy related.
[60]
Once again English law expresses the
same understanding of the basic nature of a conspiracy as was given
to our law in
Moumbaris
where the court said at 686G-687A:
“
In regard to such an offence
it is necessary to observe that, although the common design is the
root of a conspiracy, it is
not necessary to prove that the
conspirators came together and actually agreed in terms to have the
common design and to pursue
it by common means and so to carry it
into execution. If they pursued by their acts the same object, often
by the same means, some
performing one part of an act and others
another part of the same act so as to complete it with a view to the
attainment of the
object which they were pursuing, the conclusion may
be justified that they have been engaged in a conspiracy to effect
that object.
The question to be answered is, had they a common design
and did they pursue it by these common means”
69.
The House of Lords then
considered how to interpret the third requirement of the offence. The
appellant argued that an accused should
not only have agreed to
pursue a course of conduct which will necessarily amount to or
involve the commission of that offence by
himself or one of the
co-conspirators but it must be proved that the accused “
himself
.. intended that the offence should be committed”. In casu
the
appellant relied on the finding that he never intended to assist in
Andaloussi’s escape from prison.
70.
The court therefore needed
to consider the meaning to be given to the term “
intends”.
In
asking the question whether the accused in fact intended to pursue to
its end the substantive crime to which the conspiracy related,
the
House of Lords enquired into what constituted the
mens
rea
of
the offence.
[61]
71.
The
court immediately recognised the situation where a person engaged in
law enforcement feigned agreement to participate in the
conspiracy in
order to expose or frustrate the criminals. The court considered that
there had to be a
mens
rea
element
which would exculpate such a person.
[62]
I understand these passages to deal
with the
mens rea
of an accused who happens to be a law
enforcement agent.
72.
In
grappling with this postulation of the problem the House of Lords was
of the view that beyond the mere fact of agreement, “
the
necessary mens rea is established if, and only if, it is shown that
the accused, when he entered into the agreement, intended
to play
some part in the agreed course of conduct in furtherance of the
criminal purpose which the agreed course of conduct was
intended to
achieve. Nothing less will suffice; nothing more is required”.
[63]
73.
The
House of Lords found that the fact that the appellant had no
intention of participating further in assisting with the escape
plan
or that he believed that escape was impossible did not provide a
defence. It sufficed that the appellant had agreed that a
course of
conduct be pursued which, if successful, would necessarily involve
the offence of enabling a convicted offender to escape
from lawful
custody. He clearly intended, by providing the diamond wire, which
was to be smuggled into the prison, to play a part
in “
the
agreed course of conduct in furtherance of that criminal
objective”.
[64]
74.
To sum up. It is evident
that a conspiracy is an inchoate crime which requires something more
than soliciting (i.e. making an offer
to) someone to assist in the
commission of a substantive crime. One would therefore expect
something more than the making of an
offer to another person to
participate in a criminal enterprise. Our law however is clear; no
further overt act is required after
the conclusion of the agreement.
Accordingly it must be in the conclusion of the agreement itself that
one is to find the unlawful
conduct. However evidence sufficient to
support that conclusion is not to be found in the internal workings
of the co-conspirator’s
mind but in the conduct of the accused
both prior to (e.g. the extent to which his design expressly required
obtaining the participation
of others) and post the conclusion of the
alleged agreement to conspire.
75.
The English cases of
Shannon
and
Anderson
also recognise that criminal activity by organised groups poses a
significant threat as they are likely to be engaged in more serious
crimes against persons or property and generally involve careful
planning so avoid detection. Both cases recognise the need for
undercover operations, within the bounds of law, and to effect
arrests and successful convictions before the plan is consummated
or
repeated.
76.
The case of
Harris
did not engage in an
in-depth enquiry into whether there had to be a subjective intention
by at least two of the participants to
conclude the unlawful
agreement.
The
ratio
of
the court was that; “
there
can be no conspiracy unless two or more persons are ad idem as to
their object, that is, have come to some agreement”.
Only
the then edition of Halsbury was relied on with its reference to
Plummer
.
The court continued; “
whatever
the appellant thought was the case, Lockwood was not in agreement
with him as to obtaining money … to defeat the
course of
justice, but was entrapping him.”
[65]
77.
Harris
relied
on English authority which this judgment attempts to show has since
been overruled by their highest court on the grounds
that it was
premised on English procedural rules introduced to avoid unfairness;
not on substantive law (
per
Shannon
).
78.
In my respectful view
there is no reason for the offence of conspiracy to go beyond the
ordinary characterisation of an
actus
reus
where the overt
manifestation of assent by the co-conspirator should suffice. If
this were not so then absurdities arise as
illustrated in
Shannon
.
One may also add the situation where a conviction for conspiracy will
be sound if based on a finding of an agreement evidenced
entirely by
the accused’s conduct prior to and after an allegedly meeting
with his co-conspirators. In addition the very
reason for statutorily
criminalising a conspiracy to commit a crime would be defeated.
79.
In
this context other comparative law is not inconsistent. The compilers
of the
Corpus
Juris Secundum (2002)
vol
15A under the title
Conspiracy
at
para 98 mention that since the offence
is “
designed
to criminalize a person’s behaviour before the substantive
crime is completed; … liability … attaches
at a much
earlier stage than does liability for attempt, and consequently
particular caution is required in establishing liability
for
conspiracy”
.
[66]
Later the authors consider whether
various State legislation also requires the co-conspirator to have
the subjective intention of
entering into a conspiracy. At para 119
the following is said:
“
Under the unilateral theory
of conspiracy, a crime is committed when a person agrees to proceed
in a prohibited manner, and there
is no requirement that two or more
persons have agreed. Under the bilateral formulation, the crime is
committed when two or more
persons agree in a prohibited manner.”
Under
the unilateral theory, a court assesses the subjective individual
behaviour of the accused (and therefore feigned agreement
by one of
the participants is irrelevant), while under “
the
traditional bilateral approach
”,
there must be at least two “
guilty
”
persons
[67]
80.
While the analysis in
CJS
turns on whether a
particular statute is to be interpreted as adopting a unitary or
bilateral theory of conspiracy, our underlying
common law in relation
to what constitutes
consensus
,
which would prevail in the interpretation of s 18(2)(a), looks at the
external manifestations of an unequivocal commitment to
be bound
adopting an objective approach save where there is mutual error.
Furthermore, since the
actus reus
element of the offence is concerned with conduct and since the
conclusion of an agreement to conspire is relevant only to that
element,
there appears to be no reason why the subjective intention
of the person with whom the accused conspired should enter the
equation.
There are sufficient checks and balances that caution a
court in relation to the evidence of an accomplice, informer or
person
who is part of an entrapment operation, so as not to
unnecessarily interfere with the ordinary principles relating to
satisfying
the requirements of
mens rea
and the
actus reus
.
It should also be borne in mind that
the State must prove each element of the offence beyond reasonable
doubt. This I believe would
inevitably require satisfactory evidence
of the conclusion of the agreement by proof of some active step taken
by the accused,
either prior to or after the conclusion of the pact
with a co-conspirator, or acquiescence by him in a step taken
by the
co-conspirator, which furthers the unlawful objective to which
the agreement relates.
81.
This issue has been dealt
with extensively because it is necessary to demonstrate that
Harris
cannot be relied. In
my respectful view its underlying premise is clearly wrong,
inter
alia
, because the
authority it relied upon has been expressly overruled and because it
does not accord with the way in which our criminal
law
determines whether the elements of
mens
rea
and the a
ctus
reus
are satisfied, or
for that matter when a binding agreement comes into existence for
purposes of contract law; assuming that something
less will not
suffice (
contra
Moumbaris
, the
ratio
of which appears to
have been fully endorsed by our then highest court in
Sibuyi
).
THE FACTS
82.
In
either 2010 or 2011 Mr Zungu was detained at Johannesburg Central as
an awaiting trial prisoner. He shared a cell with a number
of
prisoners including a Mr Dlamini
[68]
.
A month later the appellant joined them in the same cell. When the
accused discovered that Zungu lived in Kliptown he was asked
if he
knew a policeman by the name of Moses whose features were then
described. It turned out that Zungu knew Moses. By this time
Zungu
knew that the appellant owned a number of taxis. He claimed it was
only during the proceedings when he discovered that the
appellant was
also employed as an accountant at Rand Water Board.
83.
Some five months later
Zungu was released from prison and he maintained contact with the
appellant. The appellant was released some
two months later. The
appellant and Zungu then met at a garage in Kliptown from where they
went to Zungu’s home. Zungu informed
the appellant that Moses
regularly arrived between 19h00 to 20h00 and parked his vehicle at
the gate of the Kliptown Court from
where he walked to his
girlfriend’s house. At about 19h00 they then proceeded to the
area and saw the deceased approaching.
On the way back to Zungu’s
home the appellant said that Moses must die because he was a big fish
in the appellant’s
case.
84.
Two days later the accused
contacted Zungu for a meetimg.at another location. The accused was in
the company of another man. He
was introduced as the person who would
accompany Zungu to kill Moses. At some stage the appellant had said
to Zungu that he will
see him “
right”
by which it was
understood that he would be paid something.
85.
They then went to a
vantage spot where they were able to see Moses as he walked towards
them. When they were about to cross each
other’s path Zungu
became scared and ran back to his home. He ran back because he did
not want to see Moses being killed
before his eyes. It is apparent
that Zungu’s task was to point out Moses to the assassin. The
appellant contacted Zungu later
that evening to inform him that the
other person had failed to kill Moses.
86.
Another two days passed
before the appellant again contacted Zungu. A meeting was arranged at
a crèche in Kliptown. This
time the appellant was in a Mini
Cooper car with a person named Godfrey. Godfrey had shared a cell
with them when both were detained.
The appellant said that Zungu
should accompany Godfrey to kill the deceased. However Godfrey said
that they should postpone the
killing to the following day. On the
following day Zungu received a call from the appellant to advise that
Godfrey was not answering
his phone.
87.
A week went by before
Zungu received another call from the appellant. He was asked to meet
the appellant in the afternoon at a particular
street. The appellant
was driving a bakkie and after Zungu entered the car the appellant
produced a black CZ 9mm firearm. He gave
the firearm to Zungu with an
instruction to kill the deceased. Zungu refused. The appellant
allegedly insisted that Zungu
kills Moses otherwise he will be next.
Zungu took the firearm. At home he dismantled the weapon and placed
it in a plastic bag
which he buried. That evening the appellant
phoned Zungu to find out if he had killed Moses. Zungu replied that
Moses had not arrived
that evening at his usual place.
88.
A week later the appellant
collected the firearm from Zungu and accused him of failing to kill
Moses.
89.
Two days later Zungu then
approached the deceased and informed him of the appellant’s
plot to kill him, advising Moses that
he should no longer come to
Kliptown. The following day Moses came with the second State witness,
known to him as Uncle. Moses
told Zungu that he was not afraid of the
appellant.
90.
About two months later
while at home Zungu heard about four gunshots. He went out to
investigate and was told that Moses had been
killed. He did not
report what he knew to the police because he was afraid that, having
no compunction about killing a police officer,
the appellant would
kill him.
91.
Zungu’s
version that he met Uncle in the company of Moses was confirmed when
Uncle took the stand. He is Mr Mokomane.
The meeting was in August
2011. However at the meeting Zungu did not implicate himself in the
plan to murder Moses nor did he mention
the firearm he had been given
or the threat he had received.
92.
The appellant on the other
hand claimed that he had visited Zungu on numerous occasions. He
claimed that Zungu had approached him
for a job in the taxi industry
and at Rand Water Board. The appellant confirmed that they had
exchanged contact numbers, that on
being released from prison he had
contacted Zungu and that they had met.
He confirmed that the second meeting
had also occurred but according to the appellant it was to discuss
Zungu obtaining a job at
Rand Water Board or in the taxi industry. It
was during this conversation that Zungu showed him a Mandrax tablet
and said that
he needed money to stock up with tablets. He said that
Zungu had asked for a loan which would be paid back; this version had
not
been put to Zungu. The appellant claimed that the meeting was cut
short because he had to attend a traditional healer. After testifying
the appellant called Mr Mfelang who he claimed had asked him to take
his clothes to a traditional healer for cleansing.
93.
It is evident from the
judgment that Twala J warned himself in regard to treating the
evidence of a single witness with caution.
The court weighed the fact
that Zungu could not have known the name of the investigating officer
in the appellant’s case
unless the appellant had informed him,
yet the appellant had denied doing so. The court referred to the
appellant claiming that
the purpose for going all the way to Zungu’s
house was to discuss offering him a job yet when he arrived there was
no such
discussion; not even on the subsequent occasions when they
met.
The court also took the following into
account. It was evident from the appellant’s version that Zungu
never initiated the
.meetings- it was always the appellant who did.
Moreover the appellant was employed as a financial manager at Rand
Water Board
and held a post graduate qualification in management
accounting yet, instead of offering Zungu a job over the phone or
asking him
to attend an interview, it was always the appellant who
pursued Zungu for a business proposal which he claims not to have
enquired
about beforehand. There was also no explanation as to why
Zungu would make a statement three years later to the police if he
was
angry at the time with the appellant; it was common cause that
they had no contact with one another since the last time mentioned
by
Zungu, which was some two months before Moses was shot dead.
94.
It is unnecessary to deal
with the inconsistencies raised by the trial judge in relation to the
appellant’s version. Suffice
it that one cannot fault the
learned judge’s finding that the appellant kept tailoring his
evidence as the case progressed.
The person called by the
appellant to corroborate his version that he had arranged for the
appellant to visit a traditional healer
was also blown out the water
when that person did not even know the traditional healer’s
name or where he could be found.
95.
Twala J found that
Zungu was a satisfactory witness whose role in the conspiracy was
clear; because he could identify Moses,
he was to accompany the
killer and point him out. The fact that no payment was agreed
does not mean that an agreement to
participate in the killing of
Moses was not concluded.
DEFENCE THAT EVIDENCE DOES NOT
SUPPORT A CONSPIRACY
96.
Much of
Mr
van Schalkwyk’s
argument on behalf of the appellant relied on
Harris
and on the commentary
mentioned earlier of Profs Snyman and Burchell for the proposition
that there cannot be a conspiracy if the
only other person with whom
an accused is said to have conspired did not subjectively intend to
participate in the execution of
the conspiracy.
97.
There are a number of
reasons why the argument cannot be sustained.
98.
The first is that
Alexander
remains
authority for the proposition that a conspiracy is concluded the
moment there is agreement. There is nothing to suggest
that Zungu was
not committed at that moment to participating in a conspiracy to kill
Moses. He knew the purpose of their unlawful
pact and his role in it.
The appellant certainly believed that Zungu was committed to the
venture since he approached Zungu on
two further occasions to carry
out the killing of Moses. If the murder had been committed at the
time then Zungu would have been
convicted as an accomplice.
99.
The second is that once
the agreement is concluded our law is not concerned if the only other
conspirator subsequently gets cold
feet. It would be absurd to
suggest that the act of this other person should absolve the person
who initiated the conspiracy from
criminal liability. The purpose of
criminalising a conspiracy is precisely to ensure that the offence is
nipped in the bud and
that the offender does not have the opportunity
to find another willing accomplice.
100.
The third reason is that a
conspiracy remains a conspiracy precisely because the substantive
crime was not committed or because
there is insufficient evidence to
link the accused to the crime itself. See
Moumbaris
, Shannon
and
Anderson
.
In the present case, not only was the
agreement concluded but the appellant then located a gunman on two
separate occasions and
produced the firearm that was to be used in
the commission of the substantive offence. If a diamond wire sufficed
to establish
a link in
Anderson
the present matter must be an
a fortiori
case
.
101.
Finally, even if Zungu
never intended to go along with the plan to kill Moses and even if
the gunmen who appellant introduced to
Zungu on two separate
occasions had no intention of carrying out the plan then in my view
the subjective state of mind of the co-conspirators
is irrelevant to
the question of whether the appellant had the necessary
mens
rea
and whether there
was unlawful conduct on his part sufficient to satisfy the
actus
reus
requirement
.
For sake of
completeness I deal with each element in turn.
102.
The evidence reveals that
the appellant had the necessary intention to kill: He expressly said
so and throughout it is evidenced
by his actions, including those of
supplying the firearm and procuring the gunmen.
103.
The unlawful conduct on
the part of the appellant, as I comprehend the law, is
demonstrated by the conclusion of the conspiracy
with Zungu, but even
if I am wrong on the facts and the law, then it is demonstrated by
the pact made at the meeting between the
appellant and each gunman on
the two separate occasions at which Zungu was present (the charge
sheet did not limit the co-conspirator
to Zungu alone). The unlawful
conduct necessary to demonstrate a conspiracy is also evidenced by
the appellant’s conduct
which included handing over the firearm
to at least one other co-conspirator for the purposes of killing
Moses, procuring the gunmen
and introducing each of them to Zungu so
that Zungu could point Moses out in order to kill the correct
person..
104.
In my view it is
irrelevant that none of the co-conspirators had an intention to carry
out their part of the bargain. Firstly, it
could not affect Zungu who
had committed himself to pointing Moses out to the gunman. The fact
that the gunman got cold feet, or
the opportunity did not present
itself at that moment to carry out the pact, is irrelevant.
105.
Even if Zungu was not
committed to his role of identifying Moses then, as I have considered
earlier, in order to maintain legal
consistency only the external
manifestations of assent are required for a binding contract. This
approximates more to the unitary
theory of conspiracy and certainly
negatives the bilateral approach of requiring that both parties
subjectively intend to execute
their pact.
It is only if the appellant claims
that there was no concluded pact, because at the time he did not
seriously believe that the other
person was committed, that this may
become relevant. But then the enquiry is not into the
co-conspirator’s state of mind
but the external manifestations
of assent evidenced by the accused’s subsequent conduct. Once
again reference may be had
to
Moumbaris
and
Anderson.
106.
Since the offence of
conspiracy does not require that the essential terms of a contract be
agreed upon, it was only necessary for
the accused to agree with
Zungu to undertake the unlawful activity; namely that Zungu
participates in the murder of a police officer
for the benefit of the
appellant, initially by identifying the officer to the gunman hired
by the appellant and, on the last occasion,
by being given the
firearm to do the deed himself.
It is also evident that on two
separate occasions the terms of the conspiracy were repeated in front
of a would-be gunman and then
agreed to by taking some step towards
carrying out the killing. Once again, the fact that subsequently the
gunman got cold feet
despite taking the firearm in order to kill
Moses is irrelevant if regard is had to
Moumbaris
and
Alexander
.
107.
I am therefore satisfied
that the trial court did not err on the facts and that there was a
concluded agreement between the appellant
and Zungu or at least the
gunmen who were present with him, to commit the crime of murder.
SENTENCE
108.
In
Harris,
Tatham J reduced the
offence to an attempt to commit the crime of conspiracy. At 347-8 the
court said that the circumstances of
the case did not justify a
reduction in sentence.
109.
In the present case the
appellant’s persistence in engaging a gunman to kill Moses and
his persistence in engaging Zungu to
point out Moses to the gunman
accompanying him, despite at least one abortive attempt to
assassinate Moses, considerably heightens
rather than reduces the
appellant’s moral blameworthiness. His intention was fixed and
clear despite the first two setbacks
with the gunmen to whom he had
introduced Zungu.
110.
The sentence imposed by
Twala J of twenty-two years imprisonment of which five years was
suspended (i.e. an effective seventeen
years) does not induce a sense
of shock nor was there a failure either to take into account all
relevant circumstances or to have
weighed them incorrectly.
Accordingly there is no basis to warrant this court’s
interference.
ORDER
111.
The appeal against
conviction and sentence is dismissed.
________________
SPILG
J
We agree
__________________
MONAMA
J
___________________
SENYATSI AJ
DATE OF
HEARING: 23
July 2018
JUDGMENT: 7
December 2018
FOR APPELLANT: Att. JO van Schalkwyk
BDK Attorneys
FOR THE STATE: Adv P Marasela
National Director
of Public Prosecutions
[1]
Criminal
Law (
6
th
ed) Prof CR Snyman at 286. The common law offence of a
conspiracy to commit a crime pre-dated the Riotous Assemblies
Act; see
R
v Leibrandt and others
1944
AD 253
at 289
[2]
Referred to respectively as an umbrella spoke and a chain
conspiracy.
[3]
Ib. To this extent the statement in
S
v Moumbaris and others
1974 (1) SA 681
(T) at 686B and G that a statutory offence of
conspiracy was created because there was no such common law crime,
save for conspiracy
to commit treason, existed requires
qualification. See also
Harris
infra
[4]
The common law exceptions are where
mens
rea
is
replaced by the lower culpability threshold of negligence. They
are culpable homicide and contempt of court by a newspaper
editor.
See
Principles
of Criminal Law
(5
th
ed) Prof J Burchell at 60
[5]
Burchell
Principles
of Criminal Law
at
60
[6]
Compare
Snyman
Criminal
Law
at
289;
[7]
Burchell
Principles
of Criminal Law
at
543
[8]
Snyman
Criminal
Law
at
287 and 289; Burchell
Principles
of Criminal Law
at 541 and 543
[9]
E.g.
Saambou-Nasionale
Bouvereniging v Friedman
1972(2)
SA 827 (A) at 834D
[10]
Prof
AJ Kerr The Principles of the Law of Contract (6
th
ed) at 4 quoting from Pothier
Obligations
para
4
[11]
R
v Harris(
1927)
48 NLR 330
[12]
Swift’s
Law of Criminal Procedure
(2
nd
ed) Harcourt
et
al
at
436
[13]
Criminal
Law
at
287.
[14]
Criminal
Law
at
54-58
[15]
Principles
of Criminal Law
at
77
[16]
Ib 77
[17]
Criminal
Law
at
52-53
[18]
Criminal
Law
at
52
[19]
If
the conduct and the question of unlawfulness are to be split then
the enquiry would go along the lines: “What conduct
on the
part of the accused suffices to constitute the definitional element
of the offence and will it suffice to constitute unlawfulness
or is
there some addition act or omission on the part of the accused that
would be required for his conduct to satisfy the requirement
of
unlawfulness?”
[20]
Principles
of Criminal Law at 95
[21]
Criminal
Law
at
80
[22]
In
Anderson
(infra)
the
House of Lords said at 964h expressed much the same sentiment:
“
It is a
matter of common experience that the terms of a criminal conspiracy
re hardly ever susceptible to proof; the evidence
“is almost
invariably found in the conduct of the parties”
[23]
This
is to be found in some of the State laws in the United States.
[24]
Prof AJ Kerr
The
Principles of the Law of Contract
(6
th
)
at 41
[25]
See
especially the application of
Smith
v Hughes
(1871)
LR 6v QB 597
Prof
Christie adopts the term ‘
quasi-mutual
assent’
whereas Prof Kerr prefers “
apparent
agreement
”.
See generally Prof Bradfield
Christie’s
Law of Contract in South Africa
(7
th
)
at para 2.1.3 (“
Christie”
)
and Kerr
Principles
of Contract
at
12to 13 and17.
[26]
See
generally Kerr
Principles
of Contract
at
111, 129
[27]
Christie
at
30
[28]
1958(2)
SA 473(A)
[29]
The
term “
common
design”
was
used by Boshoff J in
Moumbaris
at 687A.
It
avoids drawing unnecessary parallels with the other ordinary
requirements (ie beyond that of consensus) for a valid agreement
in
our law such as a general requirement of some form of consideration.
Boshoff J observed at 687Bthat something less than an
agreement, in
the contractual sense, would suffice. I will however
continue to refer to a conspiracy as an agreement
with another
person to commit an unlawful act.
[30]
See
Saambou-Nasionale
Bouvereniging v Friedman
1979
(3) SA 978
(A) at 991G
[31]
See
generally
Christie
at
para 2.3.8 pp82-83
[32]
See
Moumbaris
and
the cases dealt with below
[33]
See
S
v Agliotti
2011
(2) SACR 437
(GSJ) at para 9.4
R
v S
1959(1)
SA 680 (C);
R
v Heyes and others(1)
1958(1)
SA 607(W) and
R
v Segale and others
1959(1)
SA 589(T) at 591
[34]
This
again brings into question, although from a different perspective,
whether the subjective intention of the accused’s
co-conspirator can be a requirement for a conviction.
[35]
Boshoff
J dealt with this comprehensively in
Moumbaris
at
685F and 687B-687E
[36]
These
concerns become heightened where the conspiracy may relate to
committing crimes such as sedition and treason (if relevant-
compare
Criminal
Law
at
306). Prior to a significant number of its provisions being
repealed, most of the Riotous Assemblies Act related to political
gatherings.
[37]
E.g.
R
v van Schalkwyk
1938AD
543 at 551 in relation to the protection a court affords an informer
from disclosure;
S
v Mazwi
1982
(2) SA 344
(T) and
Attorney-General,
Transvaal v Botha
1994(1)
SA 306 (A) [1993(2) SACR 587] at 331E-G relating to the
withdrawal of a guilty plea
[38]
Harris
at
347
[39]
Ib
[40]
Harris
at
348
[41]
Ib at 347
[42]
See
R
v Drew
[1985]
2 All ER 1061
(CA) at 1065e
[43]
per
Harison v Errington
Popham
202, cited in
Plummer
at
343
[44]
Plummer
at
348
[45]
Ib
at 348
[46]
Ib
[47]
Ib
at 345
[48]
Ib
[49]
Ib
at 344
[50]
Ib
at 350
[51]
Anderson
at
1024-5
[52]
Ib
at
1024
[53]
Ib at 1025
[54]
At
1045 Lord Simon continued:
The instant seems to me very much
a borderline case. The rule with which your Lordships are concerned
is so deeply embedded as
to have compelled the obviously reluctant
adherence of the Court of Appeal. It has continued to be acted on
after 1907 and was
taken for granted by the Privy Council in
Dharmasena v The King. On the other hand, your Lordships are
concerned here with 'lawyers'
law'. The technical foundation of the
rule is apparent, and so is the purpose which it served for so many
years. But its irrationality
and practical inexpediency are also
apparent; and so is the fact that it is no longer needed to
serve its former purpose.
On the contrary, the present case
illustrates its absurdity, inconvenience and injustice. The
respondent pleaded guilty, fully
understanding the situation and
professionally advised. His conviction was not relevant to (and
therefore not admissible evidence
to prove) Tracey's guilt: why
should Tracey's acquittal be relevant to the respondent's
conviction? B's trial might take place
years after A was convicted,
and much of the evidence of the conspiracy might no longer be
available. If B cannot be brought
to trial he is presumed to be
innocent, and yet A's conviction stands. A may have made a full
written confession which is evidence
against himself but not against
B; and yet, according to the rule as heretofore applied, B's
acquittal exculpates A too.
Such absurdities bring the law into
discredit, and mean that rogues escape society's sanctions. This is
only to be borne if necessary
to ensure that no one is unsafely or
unsatisfactorily convicted; but the rule is no longer required
for that purpose.
[55]
Anderson
at
963f-g
[56]
Ib
at 963h
[57]
Ib at 963j-964a
[58]
Ib
at 964d
[59]
Ib
at 964e
[60]
Ib
[61]
Ib
at 965d
[62]
Ib
at 965 d-g.
The
court was careful to add that it strongly disapproved the engagement
of informers or agents provocateurs for purposes of entrapment
[63]
Ib
at 965h
[64]
Ib
at 965j. See generally
Halsbury’s
Laws of England
(5
th
ed 2016) vol 25, Criminal Law
[65]
Harris
at
347.
[66]
Ib at para 101
[67]
Ib
at para 119
[68]
It
was not disputed that Dlamini had since died.