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[2018] ZAKZPHC 52
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Mawala v S (AR267/16) [2018] ZAKZPHC 52 (12 October 2018)
THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE NO: AR267/16
In
the matter between:
WAWITO
MAWALA
Appellant
and
THE
STATE
Respondent
ORDER
a)
The
appeal against the convictions is upheld in respect of
i)
count
one (murder), and
ii)
count
three (unlawfully trespassing in an area where game was likely to be
found while carrying a weapon or trap).
b)
The
convictions and sentences on counts one and three are set aside and
the appellant is acquitted on these counts.
c)
The
appeal against the conviction is dismissed in respect of count two
(hunting specially protected game, namely, rhinoceros without
having
a valid permit being issued).
d)
The
sentence of nine (9) years imprisonment on count two is unaffected by
this appeal.
JUDGMENT
D.
Pillay J
:
[1] On Saturday 19
November 2011, game rangers at the Ndumo Game Reserve on the
KwaZulu-Natal North Coast became aware that a rhinoceros
was being
chased. They realised that poachers were within the reserve. They
watched. In the setting sun, they saw four poachers
emerge into a
clearing, walking slowly, trying to follow the rhinoceros tracks.
Hiding behind a fig tree, the rangers were able
to observe the
poachers without being noticed. Amongst the poachers they saw the
appellant, Wawito Mawala and his accomplice, Mazivelo
Erasmos (the
deceased) who was carrying a rifle.
[2] As the poachers came
closer, one of the rangers shouted to the deceased to lay down his
rifle. The deceased turned, pointing
the rifle at the rangers. Two
rangers fired shots simultaneously striking the deceased in his
abdomen and thorax. The other poachers
ran off in different
directions.
[3] Early the next
morning whilst driving about the reserve, game rangers came across
the appellant. He raised his arms. There is
a dispute as to whether
he was signally his surrender or wanting to hitchhike a lift. The
rangers took him to their offices where
other rangers who had
encountered the poachers the previous evening identified him as one
of the poachers. The appellant was subsequently
arrested and charged.
[4] Applying the
principle of
dolus eventualis
, the Regional Court, Ingwavuma,
convicted the appellant of murder on count one, on count two of
hunting specially protected game,
namely, rhinoceros without having a
valid permit being issued to him in contravention of various
conservation laws, and, on count
three of unlawfully trespassing in
an area where game is likely to be found while carrying a weapon or
trap in contravention of
an ordinance.
[5] The regional
magistrate sentenced the appellant to fifteen years’
imprisonment on count one, nine years’ imprisonment
on count
two and one year’s imprisonment on count three, with four
years’ imprisonment on count two running concurrently
with the
sentence in count one, giving an effective sentence of twenty-one
years’ imprisonment.
[6] Leave to appeal was
granted initially in respect of count one only. On 30 January 2017
counts two and three were added on the
basis that they were related
to count one. Counsel for the defence correctly conceded the
dismissal of the appeal on count two.
[7] Whilst in custody the
appellant made a statement to a police captain. At the trial he
disputed the admissibility of the statement
on the basis that he
neither spoke isiZulu nor understood the captain who recorded it in
English. At his initial appearances in
the district court the
officials spoke to him in English and isiZulu to inform of his rights
and to ascertain his preferred language.
Although he preferred to
speak Shangaan, the appellant understood isiZulu sufficiently to
function. Witnesses for the State confirmed
that they also
communicated well with him in isiZulu. For these reasons the regional
magistrate admitted the statement into evidence
as a confession.
[8] In my view, simply
because the appellant’s confession was noted on a form that did
not request nor record the particulars
of his preferred language,
cannot imply that the police did not ascertain his preferred language
before recording his statement
or that he did not know and understand
the import of his confession. Any doubt about his understanding of
the language used to
record his confession was settled with reference
to the contents of his confession.
[9]
Generally, a trial court should hold a trial-within-a-trial to
determine the admissibility of an extra-curial statement.
[1]
However, in this instance, the appellant disavowed knowledge of the
contents of the statement. This defence invited the prosecution
to
produce the statement to the court. The production of the statement
disposed of the issue as to whether the appellant had made
it
voluntarily.
[2]
Once
it became apparent that the information in the statement could have
emanated only from the appellant, the likelihood of him
not
understanding the language used to record it and of the police or the
rangers implicating him falsely, was remote. Therefore
the omission
to conduct a trial-within-a-trial to isolate the evidence in the
statement was not fatal once it was found to be admissible.
[3]
[10]
Unedited, the appellant’s statement read as follows:
‘
Wawito
Mawala
On
Saturday 2011-11-19 at about 08:00 I together with Jose whose surname
unknown to me, Mazwila Erasmo and the other person whose
name and
surname unknown to me, left the place known as Khathwane area in
Mozambic and we proceeded to Ndumo Game Reserve. We went
to that Game
reserve to hunt the rhinoserous.
While
we were on that game reserve we hunt for those rhinoserous but we
could not find them. It then happened that about 17:00 we
decided to
return back to our homestead. While we were about to left at where we
were eating food, I heard the gun shot to where
we were. I noticed
that Mazwila Erasmo was shot and thereafter I ran to my own direction
and the others were also on their own
running direction. I ran until
I get into the bushes. I get lost and I could not be able to see to
where I should go to. I even
sleep on the bushes.
Then
in morning on 2011-11-20 early in the morning, I woke up and I
proceeded with my walk to home. I found that the Maputo river
was
full and there were crocodiles, I could not be able to cross over to
my homestead place. I decided to return back to where
I was coming
from.
On my
way back I met with the vehicle of the Game Rangers and I stopped it.
There were three (3) occupants and I explained to them
that I was at
where we ran away and that I was available in the Game reserve on
that time. Thereafter they conveyed me to their
office and later to
the police station.
I have
never heard as to what happened to Jose and that other unknown
person, but the Game rangers had informed me that Mazwilo
Erasmo was
shot to death.
While
we were in the game reserve, I was only carrying the bag with food,
while Mazwilo Erasmo was in possession of the rifle firearm,
Jose in
possession of an axe and that other male person was in possession of
the sharp iron. There were no rhinoserous which we
catched on that
day. We were seen while we were deciding to return back to our
homesteads.’
[4]
[11] With this confession
the State proved the identity of the appellant; that he was one of
four poachers and that he was in the
reserve to hunt rhinoceros
(count two). The appellant was convicted of murder and unlawfully
trespassing in an area where game
was likely to be found, while
carrying a weapon or trap, even though he did not pull the trigger
that shot the deceased or carry
any weapon or trap. On both counts
one and three the conviction of the appellant rested on whether the
State proved that he had
associated himself with others in the group.
[12] During the initial
appeal hearing it became clear that the full bench was divided as to
whether the facts justified a conviction
of murder or culpable
homicide. This formulation of the issue was based on the appellant’s
statement that common purpose
was proved at least in so far as the
appellant intended to hunt rhinoceros illegally. Whether murder or
culpable homicide could
be inferred from such common was the issue.
Eventually a full court was constituted to hear the appeal. I invited
further and better
heads of argument. Anticipating a debate on
constitutional questions of an individual’s autonomy, agency
and dignity, I asked
the Chairman of the Bar to assign an amicus to
assist the court. I acknowledge the efforts of the amicus, Mr
Suleman
, rendered at short notice.
[13] Whilst preparing my
judgment it occurred to me that the omission from the charge sheet of
any reference to the appellant acting
in common purpose with his
accomplices to commit murder could implicate the appellant’s
rights to a fair trial under s 35(3)
of the Constitution of the
Republic of South Africa, 1996. The omission had received no
attention at the trial nor had it been
canvassed in the appeal. On 27
August 2018 the presiding judge (Koen J) alerted counsel to
S v
Msimango
2018 (1) SACR 276
(SCA) and invited further heads of
argument. We are indebted to counsel for their prompt responses.
[14] Counsel for the
State submits that the reference to the doctrine of common purpose in
Msimango
did not form part of its
ratio decidendi
and
therefore this court is not bound to follow it. Furthermore,
Msimango
is distinguishable because in this case common purpose was proved
and it formed part of the State’s case from the outset. If
it
were not, then the defence would have argued that there was no prima
facie case against him; the defence ‘must have realized
…
that the state will allege …common purpose.’ While the
failure to allege common purpose in the charge sheet
is, as shown by
my colleague Vahed J, to be dispositive in this case, there may be
instances when it is not. My approach is not
meant to encourage
prosecutorial sloppiness in preparing and amending charges but to
ensure that justice is done substantively.
Furthermore, the
submissions of State counsel invite the court to look beyond the
omission to the evidence to determine whether
justice was done
substantively.
[15]
Under s 35(3) of the Constitution every accused person has a right to
a fair trial, which includes the right ‘
(a)
to be informed of the charge with sufficient detail to answer it’.
[5]
This
requirement is not merely formal and procedural but substantive and
material to a fair trial.
[6]
When
the State intends to rely on common purpose it must communicate its
intention clearly, unambiguously and adequately.
[7]
If
the evidence proves common purpose the State can apply to amend the
charge sheet even after all the evidence has been led.
[8]
The trial court has wide powers to amend the charges at any
stage before judgment, regard being had to prejudice to the
accused.
[9]
[16]
The purpose of fair trial rights and the harm it seeks to avert is
the risk of a trial by ambush. The mere lack of an averment
of common
purpose in the charge sheet would not automatically render a trial
unfair. Such an approach would amount to preferring
form over
substance, possibly at the expense of justice. However, there are
conflicting decisions about whether the alleged common
purpose in the
charge sheet is fatal to the prosecution’s case. The full court
in Gauteng helpfully summarised these decisions
in
Ntuli
& another v S
[2018] 1 All SA 780
(GJ) paras 41-52. Post-apartheid, judicial
opinion inclines towards pragmatism and consequentialism. The cases
suggest that the
issue turns on whether an accused has a fair trial
or is prejudiced.
[10]
Prejudice, actual or potential, will always exist if the defence
would have been different if the allegation had been made in the
charge sheet, amended if necessary.
[11]
[17]
Similarly, in a case concerning the omission from the charge sheet of
relevant provisions of the minimum sentence legislation,
the
Constitutional Court held that while it is desirable that an accused
be explicitly informed of the applicable law, this is
not ‘a
hard-and-fast rule’ that, if not complied with, will
automatically render a trial unfair.
[12]
Each case must be judged on its particular facts. If an essential
element of the law or charge is not mentioned then:
‘
.
. .a diligent examination of the circumstances of the case must be
undertaken in order to determine whether that omission amounts
to
unfairness in [the] trial. This is so because even though there may
be no such mention, examination of the individual circumstances
of a
matter may very well reveal sufficient indications that the accused’s
section 35(3) right to a fair trial was not in
fact infringed.’
[13]
[18]
In
Msimango
[14]
above, the silence in the charge sheet about any reliance on the
doctrine of common purpose, the lack of any amendment to it and
the
absence of any evidence of common purpose led the Supreme Court of
Appeal (SCA), with the acquiescence of both counsel in that
case, to
set aside the conviction for attempted murder. In this case for the
reasons that follow the State had to allege from the
outset that it
was relying on common purpose.
[19] Common purpose is
conceptual, a legal construct, to aid the State in prosecuting
fractured cases in which the evidence is insufficient
to link
offenders to each other and consequently to the crimes. For a
lay-person accustomed to associating punishment with his
own criminal
acts, accepting liability on a notional basis is a gigantic leap of
understanding and acceptance. Therefore,
the State had to
inform the appellant in the charge sheet of the basis on which he was
being charged for murder and trespass while
carrying a weapon. Only
if he had been forewarned of this information from the outset would
he have been able to anticipate the
case against him fully and defend
himself effectively.
[20] For proof of
intention to murder the State relied on
dolus eventualis
,
another legal construct to aid the State when it had only
circumstantial evidence from which to infer intention. Additionally,
the State could apply at any stage before judgment to amend the
charges. Thus, on a charge as serious as murder, both the act and
the
intention rested entirely on notion, legal construction and a
defective charge sheet. From the outset then the law tipped the
scales unfairly in favour of the State. Informing the appellant in
the charge sheet of the State’s reliance on common purpose
was
indispensable to rebalancing the fairness of the trial. Ensuring that
the appellant was not burdened with the onus of proving
any element
of the offences was another vital safeguard.
[21]
Aside from the omission in the charge sheet and the lack of any
amendment of it, the appellant had no notice of the State’s
reliance on common purpose even when the charges were explained to
him. At the commencement of the trial the magistrate informed
the
appellant that on count one he could be found guilty of culpable
homicide, assault and pointing a firearm. Furthermore, if
the murder
was pre-planned he could face a minimum sentence of life imprisonment
if convicted, and lesser sentences if the murder
had not been
planned. The appellant indicated that he understood the explanation.
However when the court asked him to plead to
the murder charge he
replied ‘I was not the one who killed’.
[15]
Manifestly, the appellant was unaware that liability could be imputed
to him on the basis of common purpose.
[22]
Compounding the unfairness were the attempts by the prosecutor to
elicit concessions from the appellant under cross-examination
to
establish common purpose in the following extract:
‘
You
would agree with me, sir, that if four people – and I am not
saying it’s you – if four people went into the
game
reserve with the intention to poach a rhino and they anticipate that
they will see rangers, it is quite understandable that
they would
accept that the firearm that they had in their possession could be
used to ensure them not being arrested? --- Yes.
You
would agree, sir, that poachers, knowing that they are committing
something illegal, when they are confronted by rangers, they
would
know that there is every possibility that there could be shooting by
either the rangers, or by themselves? --- I do not know.
Well, it is likely that
if Law enforcement officers come across people trespassing or
committing a crime, there might be a confrontation
between them. ---
I am aware.
And
you will agree with me that if people are armed, that confrontation
could involve shooting at each other? --- Yes.
And you will agree with
me that firearms being dangerous weapons, whenever there is shooting
there is always a possibility that
someone can die? --- Yes.
Sir, I
am not suggesting that it is you, but if you were amongst those four
people, would it be fair then in that circumstance to
agree that
knowing all of that information, that you would have foreseen the
possibility that somebody could die, but went into
the game reserve
anyway, if you were amongst them? --- Yes.
Now
sir, if the Court finds that you were amongst those four people - I
know you’re going to tell me that you were not - but
if the
Court finds that you were amongst those four people in the game
reserve, can the Court accept, having the knowledge and
the common
sense that you have just displayed, that you would have foreseen the
possibility of a death occurring and you went into
the game reserve
anyway? --- I don’t know.’
[16]
[23]
Even under cross-examination, the appellant disavowed any foresight
of death of the deceased with ‘I don’t know’.
[17]
At this point in the proceedings when all the evidence for the State
had been led, the appellant was unable to link the death of
the
deceased to anything that he had done.
[24]
The prosecutor terminated the cross-examination by inviting the
appellant to offer any evidence of dissociating himself from
the
events resulting in the killing of the deceased.
[18]
This invitation and the tenor of the cross-examination was an unfair
attempt at reversing the onus upon the appellant to prove
common
purpose as a vital element to sustain the charge of murder. The State
bore the onus of proving all the elements of the charge.
By allowing
the cross-examination, and by accepting the evidence as sufficient
proof of common purpose to convict the appellant
of murder, the
magistrate effectively shifted the onus upon the appellant to prove
material elements of the crime, namely the intention
(dolus
eventualis) and the act of killing and carrying a weapon via common
purpose. This was a serious violation of the appellant’s
fair
trial rights.
[25]
Manifestly, the unfairness caused by the omission of the essential
averment of common purpose from the charge sheet was apparent
from
the appellant’s responses throughout the trial. Significantly,
his confession also reinforced his dissociation with
any weapons and
the murder. The murder charge had not materialised when he had
confessed. The first time it emerged was on 17 January
2012 after the
office of the Deputy Director of Public Prosecutions issued a minute
to this effect.
[19]
[26] Omitting any
reference to invoking the doctrine of common purpose in the charge
sheet impacted substantively to contaminate
the entire charge of
murder and trespass. If the appellant had been put on notice he would
have had the option of giving a more
detailed and, from what follows,
possibly even an exculpatory account of the poachers’ plans.
[27]
First, the evidence was that the appellant had associated himself
with the other poachers at the behest of their employer.
He did not
know the name of one of his accomplices and the name and surname of
another. The two men who employed them had transported
them ‘as
usual’ to carry out their mission to poach. The only evidence
of any common purpose was that the appellant
and three others entered
the reserve to hunt rhinoceros for their horns, on the instructions
of their employer.
[20]
Otherwise, there was no better information about how the group came
together and what their intentions were. Having regard to the
haphazard way in which the poachers were assembled, the likelihood of
the appellant having any detailed foresight and plan to poach,
let
alone to murder, was remote.
[28]
Second, he was acquitted on count four of unlawful possession of a
firearm first on the basis that possession of a prohibited
object
should not be based on common purpose to commit say, robbery, but
principles of joint possession.
[21]
Second, the mere knowledge and even acquiescence that other
assailants were armed for the common purpose to commit robbery, was
insufficient to hold an accused liable as joint possessor of the
weapons.
[22]
Third, for
there to be joint possession the appellant had to have the intention
to hold the weapons through his accomplices
who in turn had to intend
to hold them on his behalf. Having failed to prove joint possession
the State also did not prove an essential
element of the trespass
count. Omitting to allege common purpose to possess weapons in the
charge sheet compounded difficulties
for the State. His admission
that he joined a group to hunt rhinoceros does not go far enough to
prove his association with the
weapons. Nor can it be said that the
omission made no difference to the appellant’s case.
[29]
Furthermore, the ballistic report disclosed that the firing pin of
the rifle was broken and it was not able to discharge ammunition.
Whether the appellant knew this and the purpose of carrying it was
not tested in evidence. Possessing a firearm, axe and a sharp
iron in
a game reserve leads to more inferences than simply evidence of an
intention to shoot or hack law enforcement officers
or to put up
‘dangerous resistance’.
[23]
It could lead to the inference that they were to be used in poaching.
[30] Third, the poachers’
plan could not have included an agreement to resist arrest by the
security forces. Their weapons
were hardly capable of withstanding an
attack from the security forces. Armed as they were with a
(dysfunctional) rifle, an axe
and a sharp iron they would have been
no match for the superior weaponry, technology, equipment and sheer
numerical strength of
the security forces. If they had planned to use
the weapons for both poaching and defending themselves they would
have known that
they had little prospects of succeeding. They would
also have had to take the precaution in their planning to ensure that
the rifle
was functional.
[31] Fourth, if the
poachers had planned what they would do if they were caught, the
stronger inference is that they agreed to flee
rather than fight.
This inference gains traction from the evidence that the appellant
and his accomplices ran off in different
directions after the
deceased was shot. Additionally, on the State’s version, the
appellant raised his hands to surrender
when they found him. This
conduct fortifies the inference that if there was any plan at all, it
was to avoid detection as far as
possible and, if detected, to avoid
any aggressive or violent confrontation and to concoct a version to
explain their illegal presence
in the reserve. This is exactly what
the appellant did when he was caught.
[32]
Fifth, hunting rhinoceros unlawfully in a game reserve differs from
robbing a bank or a similarly guarded institution in an
urban
setting. Bank robbers must anticipate that they would encounter
head-on armed security forces guarding the bank. A bank is
also a
confined space where such an encounter is inevitable. In contrast,
poachers in the wild might genuinely believe that they
are unlikely
to encounter opposition.
[24]
Rhinoceros
in game reserves roam wide-open bushveld. Finding them is not as easy
as locating a bank. For rangers and more so for
poachers less
familiar with the terrain, to locate rhinoceros could involve
spanning a vast veld. The likelihood of rangers encountering
poachers
and vice versa is not as inevitable as bank robbers encountering
security guards. So it is not axiomatic that because
the appellant
participated in the crime of hunting rhinoceros he would therefore,
like a bank robber, actually or even reasonably
have foreseen the
possibility of death ensuing. The appellant’s answers to the
prosecutor’s questions support the inference
that this
possibility had not occurred to him.
[33] Sixth, in
Minister
of Justice and Constitutional Development & another v Masingili &
another
2014 (1) SACR 437
(CC) para 37 the court reminded:
'The
requirement of culpability encapsulates an accused person's
blameworthiness. Much of our criminal law is predicated on imposing
legal liability on accused persons who perpetrate acts for which they
are culpable; it is a general principle that criminal liability
should broadly match personal culpability. In this sense, our
criminal law recognises the importance of autonomy, which this court
has affirmed a number of times.'
[25]
(Footnotes
omitted)
Attributing
exclusive accountability to the appellant for the death of the
deceased who must have reconciled himself to the consequences
of his
own criminal conduct would conflict with the constitutional
principles of human autonomy, agency and dignity.
The
deceased must bear the burden for his own decision to participate in
the crime.
[26]
[34] Seventh, on the
principle of proportionality, the finding that the appellant should
have foreseen the possibility of someone,
including himself, killing
or being killed applies equally to the deceased. The evidence was not
that the appellant commanded or
compelled the deceased to participate
in the crime. On the contrary, the deceased’s possession of a
firearm exposed him more
than the others to being shot. In contrast,
the appellant was unarmed. He should not be punished for the
deceased’s decision
both to participate in the commission of
the crime and to do so by carrying a firearm.
[35]
Eighth, even if the appellant did foresee that someone could be
killed, when that someone was his accomplice, his comrade,
the
likelihood of him reconciling himself to the death of one of his own
or even his own death is remote unless the evidence showed
that he
was indifferent to whether they lived or died, or that they valued
their lives less than anyone else.
[27]
There
is no such evidence. The appellant could hardly have been on a
suicide mission when the very reason he resorted to crime in
the
first place was to survive unemployment after he had lost his job as
a plumber.
[36] The facts do not
lead inexorably to the inference that the appellant actually or
reasonably foresaw the killing of a person
as a result of their crime
of poaching. The State had no independent sources of information
other than what the appellant disclosed,
the rangers’
observations of the poachers and the circumstances in which they
found the appellant trespassing in the reserve.
Forewarning the
appellant of the State’s reliance on common purpose was
especially critical to a fair trial to enable the
appellant to adduce
facts from which the court might draw inferences favourable to him.
[37]
Despite the paucity of facts the magistrate drew inferences fatal to
the appellant as if he bore the onus to prove his disassociation.
The
onus rested upon the State to prove all the elements of the common
purpose amongst the poachers, to not only poach rhinoceros
for their
horns but also to kill and be killed in the process.
[28]
For the magistrate to then conclude that the appellant had the
intention in the form of dolus eventualis to commit murder was
another instance of shifting the onus onto the appellant to
dissociate from his armed accomplices and to prove his innocence.
This
was another misdirection.
[38] In conclusion, am
unable to find from all the circumstantial evidence that the only
reasonable inference to draw is that the
appellant acted in common
purpose to commit murder when he conspired to kill rhinoceros for
their horns. Furthermore, even though
the undisputed evidence was
that the appellant was trespassing for the purpose of hunting
rhinoceros, common purpose could not
be assumed without forewarning
the appellant of the basis on which the State intended to associate
him with the weapons his accomplices
carried. Accordingly, the State
failed to prove the charge of murder in count one and trespass in
count three.
[39] The order I grant is
the following:
a)
The
appeal against the convictions is upheld in respect of
i)
count
one (murder), and
ii)
count
three (unlawfully trespassing in an area where game was likely to be
found while carrying a weapon or trap).
b)
The
convictions and sentences on counts one and three are set aside and
the appellant is acquitted on these counts.
c)
The
appeal against the conviction is dismissed in respect of count two
(hunting specially protected game, namely, rhinoceros without
having
a valid permit being issued).
d)
The
sentence of nine (9) years imprisonment on count two is unaffected by
this appeal.
___________
D
Pillay J
Vahed
J (Koen J concurring):
[40] I have read the
judgment (in draft) prepared by my colleague D. Pillay J and agree
only with her conclusions and that the sentence
of nine years
imprisonment imposed as a consequence of the conviction on count 2
must stand. For the rest, (and in large part),
I disagree with her
reasoning.
[41] My colleague has set
out the facts relevant to the considerations that we are concerned
with and there does not seem to be
any necessity for me to state them
differently.
[42] My colleague has
also, in her draft judgment, set out the details of her divers
interventions during the course of this appeal
coming before the
court. There is no need for me to add thereto either.
[43] Originally when my
colleague and I constituted the Full Bench we were, as she correctly
points out, divided as to whether the
evidence sustained a conviction
for murder as opposed to one for culpable homicide. I was of the view
that sufficient had been
established with regard to the appellant’s
complicity in the murder charge while my colleague took the opposing
view. Those
differences were underscored by our respective approaches
to the doctrine of common purpose as it applied to and underpinned a
conviction for murder where the deceased was a co-perpetrator and the
fatal act was committed by someone other than one of the
co-perpetrators. In the cases that have come before the courts that
other person is usually a law enforcement officer, as in this
case it
was one (or both) of the game rangers. That differing approach, to my
mind, has been rendered academic owing to the matters
raised by my
colleague
vis a vis
the implications of the judgment in
S v
Msimango
2018 (1) SACR 276
(A) as alluded to in paragraph 13 of
her draft judgment.
[44] As I read
Msimango
,
it fundamentally alters the approach one has to take to this case.
The doctrine of common purpose, to my mind, is intrinsically
and
directly connected to the charges both with regard to murder and with
regard to count 3 because they involved imputing to the
appellant,
via the application of the doctrine, actions of his co-perpetrators.
Those actions are the ones that he made common
purpose with,
sufficient, all other things being equal, to sustain his guilt.
[45] In
Msimango
the
following was said:
‘
[14]
It is common cause that in convicting the appellant on count 3, the
regional magistrate relied on the doctrine of common purpose,
even
though it was never either averred in the charge-sheet or proved
in evidence. It was impermissible for the regional magistrate
to
have invoked the principle of common purpose as a legal basis to
convict the appellant on count 3, as this never formed part
of the
state's case.’
[46] Referring to that
extract, counsel for the respondent correctly submits that that
extract is, in the context of
Msimango
, a discussion and does
not form part of the
ratio decidendi
and was accordingly made
obiter
. The
ratio decedendi
is, to my mind, contained
in paragraph 18 of
Msimango
, which reads as follows:
‘
[18]
Both counsel conceded that, as the charge-sheet is silent on any
possible reliance on the doctrine of common purpose, and further
that
there was no application for amendment of the charge-sheet in terms
of s 86 of the CPA, the conviction of the appellant on
attempted
murder in count 3 cannot stand. I agree.’
[47]
The failure to allege common purpose in the charge sheet relating to
those two counts rendered the charges defective in that
essential
elements of the charge itself had been omitted. In this case aspects
of the
actus
reus
of others which, by the doctrine of common purpose became the
actus
reus
of the appellant, had not been put to him in order for him to quite
properly prepare for his defence. That was manifestly unfair.
[48]
It is undoubtedly correct and must be accepted that the rationale
underpinning the discussion is that the failure to allege
with
sufficient clarity the charges an accused person faces implicates a
person’s fair trial rights in the context of section
35(3) of
the Constitution.
[49]
In
Msimango
it was articulated thus:
“
[15]
Undoubtedly, the approach adopted by the regional magistrate,
of relying on common purpose which was mentioned at the
end of
the trial, is inimical to the spirit and purport of s 35(3)
(a)
of
the Constitution of the Republic of South Africa Act 108 of 1996 (the
Constitution), under the heading 'Arrested, detained
and accused
persons'. In fact, it is subversive of the notion of the right to a
fair trial which is contained in s 35(3)
(a)
of
the Constitution, which provides in clear terms that:
'(3)
Every accused person has a right to a fair trial, which includes the
right —
(a)
to
be informed of the charge with sufficient detail to answer it . . .'
[16]
Section 35(3) falls under ch 2 of the Constitution under the heading
Bill of Rights. Section 7 of the Constitution commands
the state
to respect, protect, promote and fulfil the rights in the Bill
of Rights. However, this is subject to legitimate
limits in terms of
s 36 of the Constitution. The requirement embodied in s 35(3) is not
merely formal, but also substantive. It
goes to the very heart of
what a fair trial is. It requires the state to furnish every accused
with sufficient detail to put him
or her in a position where he or
she understands what the actual charge is which he or she is
facing. In the language of s
35(3)
(a)
,
this is intended to enable such an accused person to answer and
defend himself or herself in the ensuing trial. Its main purpose
is
to banish any trial by ambush. This is so because our criminal
justice is both adversarial and accusatory.
[17] The
Constitutional Court enunciated the right to a fair trial as follows
in the seminal case of
S
v Zuma
and
Others
1995
(1) SACR 568
(CC)
(1995
(2) SA
642
;
1995 (4) BCLR 401
;
[1995] ZACC 1)
para 16:
'That
caveat
is
of particular importance in interpreting s 25(3) of the Constitution.
The right to a fair trial conferred by that
provision is broader than
the list of specific rights set out in paras
(a)
to
(j)
of
the subsection. It embraces a concept of substantive fairness which
is not to be equated with what might have passed muster
in our
criminal courts before the Constitution came into force. In
S
v Rudman and Another;S v Mthwana
1992
(1) SA 343
(A), the Appellate Division, while not decrying the
importance of fairness in criminal proceedings, held that the
function of a
Court of criminal appeal in South Africa was to enquire
"whether
there has been an irregularity or illegality, that is a departure
from the formalities, rules and principles of procedure according
to which our law requires a criminal trial to be initiated or
conducted.
A
Court of appeal, it was said (at 377)
"does
not enquire whether the trial was fair in accordance with 'notions of
basic fairness and justice', or with the 'ideas
underlying the
concept of justice which are the basis of all civilised systems
of criminal administration'.
That
was an authoritative statement of the law before 27th April 1994.
Since that date s 25(3) has required criminal trials to be
conducted
in accordance with just those notions of basic fairness and justice.
It is now for all courts hearing criminal trials
or criminal appeals
to give content to those notions.'
Although
the Constitutional Court was here dealing with s 25(3) of the interim
Constitution which has now been replaced by s 35(3)
of the
Constitution, this dictum is still relevant to s 35(3). See
also
National
Director of Public Prosecutions v King
2010
(2) SACR 146
(SCA)
(2010
(7) BCLR 656
;
[2010] 3 All SA 304
;
[2010] ZASCA 8).
”
[50]
Also highly
relevant is
s 84
of the
Criminal Procedure Act, 1977
:
“
(1)
Subject to the provisions of this Act and of any other law relating
to any particular offence, a charge sheet shall set forth
the
relevant offence in such manner and with such particulars as to the
time and place at which the offence is alleged to have
been committed
and the person, if any, against whom and the property, if any, in
respect of which the offence is alleged to have
been committed, as
may be reasonably sufficient to inform the accused of the nature of
the charge.
(2)
Where any of the particulars referred to in subsection (1) are
unknown to the prosecutor it shall be sufficient to state that
fact
in the charge.
(3)
In criminal proceedings the description of any statutory offence in
the words of the law creating the offence, or in similar
words, shall
be sufficient.”
[51] Counsel for the
respondent, in additional supplementary heads of argument, has
referred us to the recent decision in
MT v The State; ASB v The
State; Johannes September v The State
2018 ZACC 27.
That case
dealt with the failure to adequately inform an accused person of the
minimum sentencing regime applicable to a conviction
for the offence
such person was charged with. The following extract is instructive
(footnotes omitted):
‘
[38]
The
cases before us come after a number of Supreme Court of Appeal
judgments with differing approaches to the necessity of citing
the
Minimum Sentences Act’s provisions in the charge sheet.
The starting point is
Legoa
,
where the Supreme Court of Appeal held that it was not
desirable to lay down a general rule as to what is required
in a
charge sheet and that whether an accused’s right to a fair
trial, including their ability to answer the charge, has
been
impaired will depend on “a vigilant examination of the relevant
circumstances”. Since then, the Supreme Court
of Appeal has
primarily dealt with cases where charge sheets cite the incorrect
section of the Minimum Sentences Act. In
Ndlovu
,
this Court held decisively that, where an accused is convicted in a
Magistrate’s Court of an offence under an incorrect
section of
the Minimum Sentences Act, that Court will only have jurisdiction to
sentence under that section.
[39]
This
precedent has not created a hard-and-fast rule that each case where
an accused has not been explicitly informed of the applicability
of
the Minimum Sentences Act will automatically render a trial
unfair. However, a practice has developed to include
the
relevant section of the Minimum Sentences Act in the charge sheet
because of this precedent.
[40]
It
is indeed desirable that the charge sheet refers to the relevant
penal provision of the Minimum Sentences Act. This should
not,
however, be understood as an absolute rule. Each case must be
judged on its particular facts. Where there is no
mention of
the applicability of the Minimum Sentences Act in the charge sheet or
in the record of the proceedings, a diligent examination
of the
circumstances of the case must be undertaken in order to determine
whether that omission amounts to unfairness in trial.
This is
so because even though there may be no such mention, examination of
the individual circumstances of a matter may very well
reveal
sufficient indications that the accused’s section 35(3) right
to a fair trial was not in fact infringed.
[41]
The
cases before us do not take the matter any further. The
applicants attempted to locate their cases in precedent on incorrect
citations in charge sheets, with a bald statement that it is an even
worse infringement of the right to a fair trial when no section
is
mentioned at all. This was entirely unsubstantiated. They
also failed to present arguments as to which Supreme Court
of Appeal
approach is constitutionally correct. It is not even clear
whether they argue that the charge sheet itself needs
to explicitly
include the applicable provisions of the Minimum Sentences Act or if
mere mention in the trial would suffice.
[42]
It
is also not clear what test, if any, the applicants believe should be
applied to determine whether the failure to inform an accused
person
of the applicability of the Minimum Sentences Act renders a trial
unfair. These questions may yet be considered and
dealt with by
this Court if they arise in a subsequent matter.’
[52]
When then the Constitutional Court (and indeed the Supreme Court of
Appeal as in
Legoa
)
spoke of a vigilant (or a diligent) examination of all the relevant
circumstances, that was in the context of examining an accused’s
fair trial rights
vis-à-vis
the failure to inform of the penalty applicable upon conviction.
Viewed in that context it seems to me to be permissible to examine
all the circumstances of the trial and not simply adopt a ‘knee-jerk’
reaction to a defective charge sheet. I do not,
for one moment,
suggest from that examination of the case that it is of no relevance
for our purposes. I am simply suggesting that
where an aspect or
element of the charge that an accused faces is missing, a more
stringent test ought to be applied. ‘Up-front’
knowledge
of the possible penalty is important but quite how it facilitates the
conduct of one’s defence escapes me. It is
quite another matter
for an accused to be told reasonably early in the case as how his
particular involvement (and his particular
association with others)
renders him liable to conviction.
[53] Thus the case is,
for me, about the fairness of the trial from that latter perspective.
The discussion in
Ntuli & Ano v S
[2018] 1 All SA 780
(GJ), at paras 42 to 47 lends support to that view which is
encapsulated in the reference there (at paras 45 and 46) to
S v
Alexander & Ors
1964 (1) SA 249
(C) where Van Heerden J, at
page 254 A-D said:
‘
It
has been authoritatively laid down by the Appellate Division in the
case of
Rex
v Heyne and Others
,
1956
(3) SA 604
(AD)
,
that
when there is a series of acts done in pursuance of one criminal
design the law recognises the practical necessity of allowing
the
State, with due regard to what is fair to the accused, to charge
the series as a criminal course of conduct, i.e. as a
single
crime. It was further held in the same case that collaborators
participating in such a course of criminal conduct may be
joined in
one indictment even if they participated therein at different times.
It remains therefore to be seen whether the State
has in fact alleged
in its indictment a criminal course of conduct. To my mind, it
is not essential for the State to allege
in an indictment in so many
words that the accused acted in concert or with a common purpose or
in a criminal course of conduct.
It will be sufficient if the State
alleges in its indictment sufficient particulars to show that the
accused in doing what they
are alleged to have done became associated
with one another in an unlawful purpose or scheme and that the
series of acts done
by them was done in connection with and in the
furtherance of that unlawful purpose.’
[54]
To my mind, the upshot of all the authorities is that all the
essential elements and facts that go to make up a charge must
be
known to an accused as early as possible so that prejudice is averted
and so that it best informs the conduct of the defence.
In the
overwhelming majority of cases, if the charge sheet or indictment is
lacking in necessary particularity and averment the
deficiency will
be cured by the s150 address or a response to a request for
particularity.
[55]
As
Alexander
demonstrates, it is (and always has been) about fairness.
[56] In the present
matter the appellant did not receive a fair trial on count 1 (murder)
and on count 3 (trespassing while carrying
a weapon). In those
respects the appeal against the convictions and the accompanying
sentences must be upheld and those convictions
and sentences must be
set aside. As for the rest the appeal falls to be dismissed. I
accordingly agree with the Order proposed
by D Pillay J.
____________
Vahed
J
____________
Koen
J
APPEARANCES
Counsel
for the Appellant: T.P Pillay
Instructed
by: Legal Aid South Africa
Tel:
(031) 304 0100
Counsel
for the State: K. Radyn
Instructed
by: Director Public Prosecutions,
Pietermaritzburg
Tel:
(033) 845 4400
Acting
as
amicus
curiae
:
M.Z Suleman
Chambers,
Durban
Date
of Hearing (Full Bench): 03 November 2017
Date
of Hearing (Full Court): 08 June 2018
Further
Heads on Common Purpose: 07 September 2018
Date
of Judgment: 12 October 2018
[1]
S
v De Vries
[1988] ZASCA 113
;
[1989]
3 All SA 779
(AD) at 784-785;
D
T Zeffertt
and
A P Paizes
The
South African Law of Evidence
ed
(year) at 157
;
C W H
Schmidt
and H Rademeyer
Law
of Evidence
(July 2018) para 13.1.2.
[2]
S
v Potwana & others
1994 (1) SACR 159
(A) at 168e-170c;
S
v Latha & another
1994 (1) SACR 447
(A) applied in
S
v Post
2001 (1) SACR 326
(W) at 329j-330c.
[3]
S
v Dhlamini & another
1971
(1) SA 807
(A) at 810E.
[4]
Pages
428-430
of the transcript.
[5]
S
84 of the Criminal Procedure Act 51 of 1977 (CPA);
S
v Makatu
2006
(2) SACR 582
;
[2007] 1 All SA 470
(SCA); (245/05)
[2006] ZASCA 72
(30 May 2006);
J
Burchell
Principles
of Criminal Law
5
ed (2016) at 475..
[6]
S
v Msimango
2018
(1) SACR 276
(SCA) para 16;
S
v National High Command & others
1964
(1) SA 1
(T) at 2A;
S
v Mpetha & others
(1)
1981 (3) SA 803
(C) at 809F-H.
[7]
Du
Toit Commentary on the
Criminal Procedure Act
RS
60, 2018 ch14-p15;
S
v Msimango
above
para 16.
[8]
S
v Thakeli & another
2018
(1) SACR 621
(SCA) para 7.
[9]
S
86
of the CPA.
[10]
S
v
Maqubela
&
another
2014
(1) SACR 378 (WCC).
[11]
Moloi
&
others
v
Minister
for
Justice
and
Constitutional
Development
& others
2010 (2) SACR 78
para 19; 2010 (5) BCLR 497 (CC).
[12]
M
T v The State; A S B v The State; Johannes September v The State
2018
ZACC 27
paras 39-40.
[13]
M
T v The State; A S B v The State; Johannes September v The State
2018
ZACC 27
paras 39-40;
S
v Msimango
above
para 14.
[14]
S v Msimango
above
para 18.
[15]
Page
4 line 14 of the t
ranscript.
[16]
Page
251 lines 1-25 and page 252 lines 1-5 of the t
ranscript.
[17]
Page
252
line 5 of the transcript.
[18]
Page
252
lines 11-19 of the transcript.
[19]
Annexure B1 page
384 of the transcript.
[20]
S
v Mgedezi & others
1989
(1) SA 687
(A);
S
v Thebus & another
2003 (6) SA 505 (CC).
[21]
S
v Mbuli
2003
(1) SACR 97 (SCA).
[22]
Cele
and others v S
2012
(JOL)
29774
(KZN).
[23]
S
v Nkosi
2016
(1) SACR 301
(SCA) para 13.
[24]
C
R Snyman
Criminal
Law
6
ed (2014) at 183-185.
[25]
See
also S Hoctor ‘Dignity, criminal law, and the Bill of Rights’
(2004)
SALJ
304.
[26]
For
commentary see Y Davidson ‘The Doctrine of
Swart
Gevaar
to the Doctrine of Common Purpose: A Constitutional and Principled
Challenge to Participation in a Crime’ (Unpublished
master’s
thesis, University of Cape Town) 2017.
[27]
S
v
Humphreys
2013
(2) SACR 1
(SCA) para 18.
[28]
S
v Mgedezi
paras
50;
Minister
of Justice and Constitutional Development v Masingili
2014
(1) SACR 437 (CC).