About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 169
|
|
Sithole and Another v S (A777/15) [2017] ZAGPPHC 169 (20 February 2017)
THE REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA, PRETORIA
Case
no: A777/15
Date:
20/2/2017
Not
Reportable
Not
of interest to other judges
Revised
In
the matter between:
HENDRIK
SITHOLE 1
st
Appellant
MICHAEL
KHUMALO
2
nd
Appellant
THE
STATE
Respondent
Heard:
21 October 2016
Delivered:
January 2016
JUDGMENT
Molahlehi
J
Introduction
1.
This is an appeal against both the conviction and
sentences of the appellants by Els J relating to the incident that
occurred on
7 May 1999. The appeal in respect of the first appellant
concerns both the conviction and sentence and that of the second
appellant
concerns his sentence. The accused were charged with the
following counts:
Count 1- Murder
Count 2- Attempted murder
Count 3- Robbery with
aggravating circumstances
Count 4- Attempted house
breaking
Count 5- Illegal
possession of a firearm
Count 6 Illegal
possession of ammunition.
2.
The appellants were convicted of counts 1, 2, 3 and 4
and were acquitted in respect of counts 5 and 6. They were sentenced
as follows:
Count 1- life
imprisonment
Count 2- 15 years
imprisonment
Count 3- 20 years
imprisonment
Count 4- 5 years
imprisonment
3.
The appellants were in effect sentenced to life
imprisonment and a further 40 years' imprisonment. The trial court
further requested
that Correctional Services not release them on
parole until a period of 40 years' imprisonment had been served.
4.
The appeal has been referred to the Full Court of the
Gauteng Division with leave of the Supreme Court of Appeal dated 15
November
2012, following the refusal of the application for leave to
appeal by the trial Court on 7 December 2006.
5.
The appeal of the second appellant, Mr Michael Khumalo,
was disposed of in the order of a full court division dated 18
January 2013.
His case is, however, dealt with in the heads of
argument of the appellants. His Counsel conceded that the matter was
not before
this court and that this court must concern itself only
with the case of first appellant (the appellant). This appeal
therefore,
only focuses on the appeal of the appellant.
The
background facts
6.
The facts in this matter are generally common cause. I
therefore do not deem it
necessary to deal
in any detail with the testimony of all of the witnesses who
testified
during the trial. I refer to the
testimony of those witnesses whose evidence I regard as being
relevant to the determination of
this appeal.
7.
The first witness of the State was Mrs Middleton, the
complainant in the matter and the wife of the deceased, testified
that on
the fatal day, 7 February 1999, she and her deceased husband,
driving in separate cars, arrived at their house at about 22:55 in
the evening.
8.
After entering the house they both moved to their
bedroom which is on the upper floor of the house only to discover on
arrival there
that the window was broken and the burglar bars bent.
The deceased then went downstairs to inspect and retuned into the
house with
the dogs which did not pick up any scent inside the house.
9.
Mrs Middleton then went downstairs, followed by the
deceased. As she arrived downstairs and as she was coming out of the
front door
she was shot in her face. She then ran towards her
neighbour's house. As she was running she heard two gunshots and
after the second
shot she heard her husband screaming. She was unable
to jump over the fence of the neighbour's yard. She was, however,
fortunate
in that shortly thereafter the neighbours arrived.
10.
Mr Cole, the neighbor and the Superintended with the
South African Police Service, testified that he arrived at his house
to find
Mrs Middleton who was seriously injured
outside
their yard. After relating to him briefly what happened it was
arranged that his wife should take her to the hospital. He
phoned the
police and went into the yard where he found the deceased lying on
the grass appearing to be dead.
11.
After the state closed its case th appellant also closed
his case without leading any evidence. It is, however, common cause
that
the appellant voluntarily made a statement to the police which
was handed in during the trial. The statement together with the
photos taken at the pointing out of the scene of the crime by the
appellant were submitted and accepted as exhibits "G1 and
G2."
The appellant confirmed that the statement was true and correct. The
relevant part of pointing out statement for the
purpose of this
judgment reads as follows:
"Persoon wys uit
waar hy observasie gehou het terwyl hy sy vriende besig was
om
die huise se venster te breek. (Foto word geneem waar hy gesit het).
Die beskuldigde deel verder mee dat hy voertuig ligte gesien
het wat
die woning nader waarop hy sy vriende gewaarsku het deur vir hulle te
fluit. Hy het toe skote in die woning gehoor afgaan
waarna hy
wegge-hardloop het na die teerpad. By die teerpad het hy na 'n
drinkplek gegaan waar hy 'n koeldrink gedrink het voordat
hy terug
gekeer het na sy woning."
12.
The defense presented their case through the testimony
of the second and third accused. The second accused testified that he
accompanied
a certain Tebogo to go and pick up his property. He did
not enter the yard. Tebogo and accused number three went into the
yard.
Whilst standing outside the yard he heard a window breaking.
Soon thereafter he saw two cars driving into the Middletons' yard,
after which he then heard gunshots.
13.
The second accused further testified that soon after the
gunshots Tebogo and the third accused came out with a 4x4 Nissan
bakkie
which belonged to the Middletons. They according to him left
the premises of their victims without the appellant.
14.
The third accused testified on how after entering the
yard of the Middletons, a scuffle broke out between him and Tebogo.
The scuffle
was because he refused to obey the instruction from
Tebogo to break the window. Tebogo finally broke the window with his
gun.
15.
Soon after breaking the window, the third accused and
Tebogo including the other coperpetrators were warned of the
arrival
of the victims by the appellant who did that by
whistling. The third accused fur'ther testified that
after the shootings they left the premises with the bakkie belonging
to the
victims. He also confirmed what was said by
the
second accused that they left the scene without the appellant.
Grounds
for appeal
16.
The appellant contended that the state failed to prove
that he had common purpose with his co-perpetrators to commit murder,
attempted
murder and robbery. It is for this reason that it was
contended that the court erred in finding that the appellant had
common purpose
with the co-perpetrators to commit the offences for
which he was found guilty of.
The
decision of the court.
17.
The relevant part of the decision of the court relating
to the appellant reads as follows:
"... Uit die
getuienis uit, en dit word hoofsaaklik behels uit bewysstuk G1 en 2,
dit is die uitwysing deur beskuldigde 1 gedoen,
was hy op die toneel
gewees. Beskuldigde 2 en 3 plaas horn (the appellant) ook op did
toneel.
Hy het daar gestaan as klaarblyklike wag, op sy eie
weergawe in sy
verduideliking. Toe die voetuie aankom het hy
sy mededaders in hierdie huisbraakpoging van hulle, gewaarsku deur
vir hulle te fluit
en hy het toe die
hasepad gekies. Maar, dit
is duidelik, op sy eie weergawe dat hulle daar was met die opset om
in te breek by daardie betrokke huis."
18.
The court in
dealing with the legal principles governing the doctrine of common
purpose relied on the decision in S v Malinga en
Ander,
[1]
where the
Appellate Division in dealing with this issue said:
"In the present case
all the accused knew that they were going on a housebreaking
expedition in a car, and that one of them
was armed with a revolver
which had been obtained and loaded for the occasion. It is clear that
their common purpose embraced not
only house breaking with intent to
steal and theft, but also what may be termed the getaway. And they
must have foreseen, and therefore
by inference did foresee, the
possibility that the loaded ''firearm" would be used against the
contingency of resistance,
pursuit or attempted to capture. Hence, as
far as the individual
mens rea
is concerned, the shot fired by
accused number 4 was, in effect, also the shot of each of the
appellants. On the question of intention
to kill, they must have
foreseen, and therefore by inference did foresee, the possibility
that the use of the loaded firearm would
have fatal consequences.
Violence, fire-arms, and death are ever an easy and sombre trinity
... And the appellants were clearly
reckless whether death would in
fact ensue or not. Hence the intention to kill must be imputed to
each of them."
19.
It was based on the above authority that the court
concluded on the facts of this case that:
"Volgens wat hier
gese is dit duidelik dat al vier beskuldigdes skulddig is op klagtes
1, 2, en 3."
20.
In other words the court found that the appellant was
part of the common purpose to commit murder, to attempted murder and
robbery.
The shooting of the victims and the robbery by the
co-perpetrators were imputed to him.
The
issue for determination
21.
As alluded to earlier this appeal concerns both the
conviction and the sentence. The first issue to determine in this
matter is
whether the appellant had common purpose with the
co-perpetrators to murder, and rob the victims. The enquiry into the
issue entails
an investigation into the intention on the part of the
appellant.
The
doctrine of common purpose
22.
The doctrine of
common purpo1e has been defined by Burchell and Milton,
[2]
in the following
terms:
"Where two or more
people agree to commit a crime or actively associate in a joint
unlawful enterprise, each will be responsible
for specific criminal
conduct committed by one of their number which falls within their
common design. Liability arises from their
'common purpose' to commit
the crime."
[3]
23.
The essence of the
doctrine of common purpose is stated by Snyman,
[4]
in the following
terms:
"... if two or more
people, having a common purpose to commit a crime, act together in
order to achieve that purpose, the conduct
of each of them in the
execution of that purpose is imputed to the others."
24.
It is apparent
from the authorities that liability in terms of the doctrine of
common purpose arises where the participants agree
or associate
together with others to commit a particular crime with the requisite
mens
rea.
The
basis of common purpose can thus be by way of prior agreement which
may be express or implied. It may also be by way association
between
tl1e co-perpetrators. In general active association may be evidenced
by conduct of the co-perpetrators. It is not necessary
to show that
the participation of the co-perpetrators was causally connected to
the consequent crimes.
[5]
The other
principle governing common purpose is that it is not necessary for
the prosecutor to prove beyond reasonable doubt that
each of the
co-perpetrators directly and/ or actively participated in the
unlawful conduct. Once the element of fault has been
satisfied, then
the conduct of the co-perpetrator of the crime is attributed to the
other participants. In other words what the
prosecutor needs to
establish is that one of the group members caused the consequent
crime. However, the intention of each of the
co-perpetrators must be
determined independently without reference to the mental state of the
other participants.
[6]
25.
The prerequisites
in order to attract liability in a case based on the doctrine of
common purpose are set out in S v Mgedezi,
[7]
in the following
terms:
(i)
The
accused must have been present at the scene where violence was
committed.
(ii)
He
or she must have been aware of the crime committed.
(iii)
He
or she must have manifested his sharing of a common purpose by
himself performing some act of association with the conduct of
the
others.
26.
In S v Thebus,
[8]
the Constitutional
Court in dealing with the doctrine of common purpose held that:
"If the prosecution
relies on common purpose, it must prove beyond a reasonable doubt
that each accused had the requisite
mens rea
concerning the
unlawful outcome at the time the offence was committed. That means
that he or she had intended that criminal result
or must have
foreseen the possibility of the criminal result ensuing and
nonetheless actively associated himself or herself reckless
as to
whether the result was to ensue."
27.
Having agreed or
associated himself or herself in a crime, the accused may withdraw or
disassociate himself or herself from such
criminal conduct. The
authorities are in agreement that a defense of disassociation from
the original agreement or association
with the purpose of committing
a crime is a good defense. It was thus held in S v Nduli &
Others,
[9]
that:
"Dissociation
consists of some of or other form of conduct by a collaborator to an
offence with the intention of discontinuing
his collaboration. It is
a good defense to a charge of complicity in the eventual commission
of the offence by his erstwhile associate
or associates."
28.
In S v Musingadi
and Others,
[10]
the court in
dealing with the defense of disassociation had the following to say:
"What may be
gathered from our case law, however, is that not every act of
apparent disengagement will constitute an effective
disassociation.
Compare Snyman:
Strafreg
(4ed) at 267-9. It appears that much
will depend on the circumstances: On the manner and degree of an
accused’s participation;
on how far the commission of the crime
has proceeded; on the manner and timing of disengagement; and, in
some instances, on what
steps the accused took or could have taken to
prevent the commission or completion of the crime. The list of
circumstances is not
exhaustive. To reduce this composite of
variables to a workable rule of law may be artificial, even unwise."
Evaluation
and analysis
29.
It is common cause that the appellant agreed to go with
the co-perpetrators to the Middletons' residence for the purposes of
house
breaking and theft. The applicant was thus present when the
consequent offence was committed. However, the key question to answer
is whether on the totality of the evidence presented, it was
established that he had the necessary
mens rea
to meet the offences for which he was
convicted of.
30.
In my view, having regard to the totality of the
evidence in this matter, the state has failed to prove that the
appellant had the
intention to murder, injure another person and rob.
The facts in the Malinga's case (supra) are distinguishable from the
present
one in that the co-perpetrators in that case went to the
scene of the crime whilst knowing that one of them was in possession
of
a loaded gun. They were clearly prepared to deal with any
resistance to their plan in a violent manner and they by inference
foresaw
the possibility of violence and a fatal confrontation.
31.
There is no evidence, in the present case that the
co-perpetrators went to the Middletons' house to do anything other
than break
and steal. That is what they had agreed upon before Tebogo
and the other co-perpetrators entered the yard of the victims.
32.
On an objective and proper analysis of the evidence it
is clear that the appellant stood outside the yard so that he could
guard
the arrival of the Middletons and warn the others of their
arrival. The warning was to give the others the opportunity to run
away
before the Middletons reached their house. This the appellant
did as soon as he saw the Middletons arriving in their two cars. It
is apparent that the other co-perpetrators did not react to the
warning.
33.
The appellant ran away as soon as he heard the gun
shots, signaling his disassociation from what the others were doing.
The shooting
was not within the mandate to break and steal. The
co-perpetrators were now acting outside the agreed mandate. It is
important
to note that there is no evidence that the appellant was
aware that Tebogo had a gun with him when he entered the yard of the
Middletons.
Counsel for the State sought to persuade this court to
infer knowledge of the firearm from the fact that the group spent
some time
together planning the house breaking with intent to steal.
In my view no sufficient basis has been laid to draw that inference.
34.
This case is
distinguishable from S v Magwaza,
[11]
where the court on
appeal confirmed the finding of the trial court that the appellant
was guilty on the basis of common purpose.
In that case the court
fou1d that the appellant had been aware that his companion was in
possession of a loaded firearm. The appellant
knew as a matter of
fact that the gun was loaded and foresaw that it could be used with
fatal consequences.
35.
The appellant in disassociating himself to what his
co-perpetrators were doing ran away from the scene as soon as he
heard the gunshots.
He did not wait for them to come out of the yard.
Put in another way he did not wait to receive the report on how
successfully
the others had carried out the 'mandate.' It is
important to note that he did not only run away from the scene but
that he never
went looking for the others to find out what had
happened. He clearly disassociated himself with what the others had
done in 'breach
of the mandate' of house breaking and theft.
36.
The version that the appellant ran away when he heard
the gun shots and that he left the others behind is supported by the
evidence
of both the second and third accused. As indicated above
they both testified that they left the premises of their victims
without
the appellant. It is also indicated in the statement that he
made to the police during the pointing out that after running away
from the scene he went to the tavern where after purchasing a drink
he went home.
37.
In light of the above, I find that the court erred in
convicting the appellant on the charges in question as the state had
failed
to prove beyond reasonable doubt that the appellant was guilty
of murder, attempted murder and robbery in the context of the
doctrine
of common purpose.
38.
Turning to the issue of culpable homicide, Counsel for
the State contended that in the alternative the appellant was guil7
of the
offences he had been convicted of on the basis of negligence.
In other words he ought to have foreseen that in the process of
breaking
into the house there may be resistance that may result in
murder.
39.
In support of the
proposition that the appellant was liable for negligent killing of
the deceased, Counsel relied on the decision
of the Appellate
Division in S v Nkwenja.
[12]
The court in that
case, similar to what happened in Malinga's case, upheld the
conviction of culpable homicide on the basis that
it was reasonably
foreseeable that the use of violence to overcome resistance could in
the circumstances have resulted in death.
In this respect the Court
quoted with approval what was said in S v Ngobozi,
[13]
where in dealing
with the issue of negligence in a case involving common purpose the
court had the following to say:
"The starting point
is that culpable homicide is the unlawful negligent causing of the
death of a fellow being. See De Wet
and Swanepoel Die Suid-Afrikaans
Strafreg 2nd ed 211 in fin; S v Thenkwa en 'n Ander1970 (3) SA529
(AD) at 534E; and S v Matshiza1970
(3) SA 747 (A) at p752.
Suppose A and B, each
carrying a knife, from an unlawful common purpose, in the execution
whereof each is to play a contributory
part, to assault C by stabbing
him. In the ensuing scuffle, first A gets in the first and only
stabbing blow; and as the result
C falls dead.
Each is guilty of murder
if he subjectively foresaw the possibility of the execution of their
unlawful common purpose causing the
death of C, but nevertheless
persisted therein, reckless whether the possibility became fact.
Failing such subjective foresight
each is guilty of culpable homicide
if, objectively, he ought to have foreseen the reasonable possibility
of the execution of their
unlawful common purpose causing the death
of C. In other words, each unlawfully and negligently caused the
death of a fellow being."
40.
The facts in that case are distinguishable to those of
the present case in that the two accused in that case had decided to
rob
the owners of motor car that was standing in an open piece of
land. They both used violence in their attempt at taking the car from
the owners. One of the occupants of the car died as a result of the
violence. The court found that by the time the accused decided
to rob
the victims of their car they had already devised their plan and the
role that each would play including the use of violence
which was
clearly devised.
41.
There is, however, no doubt that the appellant did
associate himself and in fact went to the scene of the crime with the
intention
of house breaking and stealing. The evidence which was
presented before the court indicates very clearly that the appellant
agreed
with his co-perpetrators to commit the crime of house breaking
with the intention to steal.
42.
Accordingly, I find that the court was correct in
convicting the appellant on the charge of attempted house breaking.
It follows
therefore that the appeal as concerning the conviction on
attempted house breaking stands to fail.
43.
The issue that then remains for consideration concerns
the punishment imposed by the court in relation to the attempted
house breaking.
44.
It is trite that
the appeal court does not have a general discretion to overturn the
decision of the trial court concerning the
sentence imposed.
[14]
It has been said
that the appeal court will interfere with the sentence where the
sentence is out of proportion to the gravity of
the offence committed
or where it is clear that the trial court failed to exercise its
discretion correctly.
[15]
45.
It is quite clear from the reading of the record that
the court in imposing the five years' imprisonment on the charge of
attempted
house breaking considered all the relevant factors and
arrived at a decision that is appropriate in the circumstances of the
case
before it. I have therefore not been persuaded that there is a
basis for interfering with the sentence imposed on the appellant
regarding the attempted house breaking.
ORDER
46.
In the premises I propose the following order:
1.
The appeal is upheld in relation to the conviction on
murder, attempted murder and robbery.
2.
The order of the trial court regarding convictions on
murder, attempted murder and robbery are set aside and substituted
with the
following:
i.
"The First Accused is not guilty of murder,
attempted murder and robbery with aggravating circumstances.
ii.
The First Accused is discharged in relation to the
charges of murder, attempted murder and robbery.
3.
The appeal against the conviction of attempted house
breaking with intent to steal is dismissed.
4.
The appeal against the sentence on the conviction of
attempted house breaking with intent to steal is dismissed and
accordingly
stands as 5 years imprisonment,
5.
This order is antedated to 31
st
December 2001.
______________________
E.M MOLAHLEHI
JUDGE OF THE HIGH COURT
I AGREE
______________________
A.ALOUWJ
JUDGE OF THE HIGH COURT
I AGREE
______________________
RANCHOD J
JUDGE OF THE HIGH COURT
[1]
1963 (1) SA 692
(A) at 695.
[2]
Burchell and Milton
Principles
of Criminal Law
2"'ed
at 393.
[3]
The definition was referred to with approval in Thebus and Another
v
S (CCT36/02)
[2003] ZACC
12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR 1100
(CC) (28 August 2003).
In this case the constitutionality of the doctrine of common purpose
was unsuccessfully challenged.
[4]
Snyman
Criminal Law
4
th
ed at 261.
[5]
See S v Setatso
1998 (1) SA 868
at 895. This judgment confined those
decisions that overruled the cases that had held that the doctrine
of common purpose required
causal connection between the act of the
accused and the consequent death to be shown.
[6]
See S v Leroux and Others 2010 (2) SARC 11 (SCA) where the court
found on the authority of S v Mgedezi
1989 (1) SA 687
, that the
conduct of 'the individual accused should be individually considered
with the view to determining whether there is
sufficient basis for
holding a particular accused person is liable on the ground of
active participation in the achievement of
a common purpose that
developed at the scene."
[7]
(415) (1987) [1988] ZASCA 135.
[8]
2003 (2) SACR319 (CC).
[9]
1993 (2) SACR 501
(A) at p504d-e.
[10]
2005 (1) SACR 395
(SCA) at para 35.
[11]
1985 (3) SA 29
(a) AT 418.
[12]
1985 (2) SA 560 (A).
[13]
1972 (3) SA476 (A).
[14]
See S v De Jager 1965 (2) SA 616 (A).
[15]
See Mokela v S (135/11)
[2011] ZASCA 166
; 2012 (' SACR 431 (SCA) (29
September 2011), where the court held that: 'It is well-established
that sentencing remains pre-eminently
within the discretion of the
sentencing court."