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[2017] ZASCA 173
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Malele and Others v S (723/2016) [2017] ZASCA 173 (1 December 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 723/2016
Not
Reportable
In
the matter between:
MESHACK
MALELE
FIRST APPLICANT
SIPHO
SYDWELL
NGOBENI
SECOND APPLICANT
BONGANI
KOLISI
THIRD APPLICANT
LINDA
SOLOLO
FOURTH APPLICANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Malele
v The State
(723/2016)
[2017] ZASCA 173
(1 December 2017)
Coram:
Navsa
ADP, Swain, Mathopo JJA and Mokgohloa and Ploos van Amstel AJJA
Heard:
1
November 2017
Delivered:
1
December 2017
Summary:
Reconsideration
in terms of
s 17(2)
(f)
of
the
Superior Courts Act 10 of 2013
of a decision of two judges of the
court refusing leave to appeal –principles in relation to the
application of the doctrine
of common purpose to be considered –
reasonable prospect that another court may overturn the murder
convictions.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Bam J sitting as court of first
instance):
The
decision of this court dated 3 May 2016 is set aside and the
applicants are all granted leave to appeal their convictions to
a
full court of the Gauteng Division of the High Court, Pretoria.
JUDGMENT
The
Court:
[1]
The present case flows from a decision of the then President of this
court (Mpati P), in terms of
s 17(2)
(f)
of the
Superior Courts Act 10 of 2013
[1]
to refer a decision of two judges of this court, dismissing an
application for leave to appeal, for reconsideration by this court.
The background is set out hereafter.
[2]
The four applicants who at relevant times were all members of the
South African Police Service are linked to an event which,
because of
disturbing images recorded on video, received wide public attention.
It is common cause that on 26 February 2013, Mr
Silvesta Jossefa
Marcia was arrested near a taxi rank in Daveyton by police stationed
at the Daveyton Police Station. During his
arrest, handcuffs placed
on him became attached to a steel bench in the back of a police
vehicle. The vehicle drove off after the
police appeared to feel
threatened by a crowd that had gathered. It departed with Mr Marcia
still attached to a bench at the back
of the police vehicle and with
part of his lower body on the ground behind it. Mr Marcia was dragged
behind the vehicle for a distance
of approximately 200 metres.
Subsequently, he was transported to the Daveyton Police Station, a
short distance away. It is common
cause that, upon his arrival at the
police station, the deceased was conscious. He was placed in a
holding cell and died a few
hours thereafter. In a subsequent trial
the applicants who were all said to have been involved in the
deceased’s arrest,
together with five other accused, faced
murder charges. The State’s case was that in addition to
sustaining injuries as a
result of being dragged along the road by
the police vehicle, he was also assaulted in the holding cells and
that the combination
of the two events led to his death.
[3]
The version of the applicants was that some of them were unaware that
the deceased was being dragged along the road by the police
vehicle
and that the fourth applicant and co-accused two, who had seen this
had attempted to come to his assistance by lifting
him off the ground
but shortly thereafter dropped his legs when the vehicle increased
its speed. Furthermore, so it was pointed
out, one of the applicants’
co-accused, accused four, drove behind the police vehicle in order to
gain the attention of the
driver, accused six. Accused four
ultimately succeeded in gaining the driver’s attention and
caused him to bring the vehicle
to a halt. Each of the applicants
denied assaulting the deceased. Thus, they all denied that they had
committed any offence at
all.
[4]
The cause of the deceased’s death, as recorded in the
post-mortem report and testified to by the State pathologist, Dr
Skosana, was said to be ‘extensive soft tissue injuries and
hypoxia’. Simply put, it appears from his evidence that
a lack
of oxygen due to the extensive soft tissue injuries is what caused
the deceased’s death. Dr Skosana conceded that
some of the
injuries could have been sustained during the initial scuffle with
the police when the deceased resisted arrest and
further that some of
the injuries could have been sustained during the time that he was
dragged behind the vehicle and that some
of the blunt trauma could
have been caused by the deceased falling with his head against a hard
bench in the police cells. The
direct evidence on behalf of the
State, in relation to the alleged assault of the deceased in the
holding cells, was that of a
fellow policeman, who, it must be said,
did not identify anybody specifically in relation to the alleged
assault in the police
holding cells.
[5]
The court below (Bam J) held that the State had proved beyond
reasonable doubt that the applicants and their co-accused
all
knew that the deceased was being dragged behind the police vehicle.
Bam J, although accepting that accused two and the fourth applicant
had attempted to assist the deceased when the police vehicle drove
off, dragging the deceased behind it, concluded that this did
not
remedy their failure to do anything further. The court below accepted
that accused four, as described in the preceding paragraph,
had
caused the vehicle to which the deceased was attached to come to a
halt, but nevertheless held that he was indeed aware of
and
associated himself with the dragging of the deceased in the manner
described above.
[6]
Bam J linked the dragging of the deceased with the assault in the
holding cells and, even though accepting that the first applicant
was
not present in the cells at the time of the alleged assault,
nevertheless held, ostensibly on the basis of common purpose,
that
the applicants and their co-accused were all guilty of murder and
convicted them accordingly. He sentenced each of the applicants
to 15
years’ imprisonment.
[7]
Applications by the applicants for leave to appeal their convictions
were refused by the court below. An application for leave
to appeal
to this court was dismissed by two of our colleagues. The applicants
then applied to the then President of our court,
Mpati P, in terms of
s 17(2)
(f)
of the
Superior Courts Act 10 of 2013
to refer the matter to the
court for reconsideration, and if necessary, variation. Mpati P
decided in their favour. As stated at
the commencement of this
judgment, it is that decision that led to the matter being before us.
[8]
Mpati P provided a judgment setting out his reasons for referring the
decision by our colleagues refusing leave to appeal for
reconsideration. He considered it material that the single witness to
the alleged assault in the holding cells, warrant officer
Ngamlana,
stated that the deceased was surrounded by accused two to eight
(which included applicants two, three and four), but
that he could
not see what was happening and that it was not clear whether only one
or more of the policeman within the cells assaulted
the deceased.
Furthermore, Mpati P had regard to the court below’s reasoning,
that the applicants’ failure to intervene
when the deceased was
being dragged behind the police vehicle was an act of association,
manifesting a common purpose with the
driver of the vehicle. Mpati P
had ‘grave doubts’ about the court below’s
application of the doctrine of common
purpose. In this regard, he
noted that the court below had accepted that two of the policeman
attempted to assist the deceased
when the police vehicle drove off by
lifting his legs off the ground but then let go of him when the
vehicle accelerated, yet found
that because they had not done
anything else to assist the deceased, they were not ‘absolved’.
At para 9 of the reasons
supplied by Mpati P, he said the following:
‘
I
also question the trial court’s conclusion that the applicants’
form of intent (
mens
rea
)
was
dolus
eventualis
.
In my view, another court might find differently.’
[9]
In setting out his misgivings about the application by the trial
court of the doctrine of common purpose, Mpati P referred to
the
prerequisites for liability set out in the judgment of this court in
S
v Mgedezi & others
[1988] ZASCA 135
;
1989 (1) SA 687
, at 705I–706C
[2]
and confirmed by the Constitutional Court in
S
v Thebus & another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC).
[10]
In referring the matter for reconsideration, Mpati P recorded that in
a separate application for leave to appeal, accused four
had been
granted leave by this court to appeal against his conviction and
related sentence to the full court of the Gauteng Division
of the
High Court, Pretoria. He stated that this did not mean, without more,
that the applicants should also be granted leave to
appeal. He noted,
however, that accused four had succeeded in attracting the attention
of the driver of the vehicle behind which
the deceased was dragged
and caused him to bring the vehicle to a halt. Mpati P was rightly
concerned that, notwithstanding that
fact, the court below did not
differentiate between accused four and his co-accused.
[11]
Since we are dealing solely with the question of whether leave to
appeal should be granted we will, for obvious reasons, refrain
from
making final evaluations in relation to specific parts of the
evidence. We do, however, share Mpati P’s misgivings.
In our
view there is a reasonable prospect that another court will hold that
the murder convictions should be overturned. Whether
there are other
lesser offences of which the applicants might rightly be convicted is
a matter best left to the court adjudicating
the appeal. It will no
doubt have regard to questions of sufficiency of evidence in relation
to each of the applicants and questions
of causation will undoubtedly
form part of a determination of the guilt of each.
[12]
It is necessary to record that both in heads of argument and before
us, the State conceded that it was in the interests of
justice that
leave to appeal be granted.
[13]
For the reasons set out above, the following order is made:
The
decision of this court dated 3 May 2016 is set aside and the
applicants are all granted leave to appeal their convictions to
a
full court of the Gauteng Division of the High Court, Pretoria.
___________________
M S Navsa
Acting Deputy President
__________________
K G B Swain
Judge
of Appeal
_________________
R S Mathopo
Judge
of Appeal
_________________
F E Mokgohloa
Acting
Judge of Appeal
________________
J Ploos van Amstel
Acting
Judge of Appeal
Appearances:
For
the Appellant:
M van Wyngaardt
Instructed
by:
Pretoria
Justice Centre, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent:
C Mnisi
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecution, Bloemfontein
[1]
That section reads as follows:
‘
The
decision of the majority of the judges considering an application
[for leave to appeal] referred to in paragraph
(b)
,
or the decision of the court, as the case may be, to grant or refuse
the application shall be final: Provided that the President
of the
Supreme Court of Appeal may in exceptional circumstances, whether of
his or her own accord or on application filed within
one month of
the decision, refer the decision to the court for reconsideration
and, if necessary, variation.’
[2]
At 705I – 706C the following
appears:
‘
In
the absence of proof of a prior agreement, accused No 6, who was not
shown to have contributed causally to the killing or wounding
of the
occupants of room 12, can be held liable for those events, on the
basis of the decision in
S
v Safatsa & others
1988 (1) SA 868
(A) , only if certain prerequisites are satisfied.
In the first place, he must have been present at the scene where the
violence
was being committed. Secondly, he must have been aware of
the assault on the inmates of room 12. Thirdly, he must have
intended
to make common cause with those who were actually
perpetrating the assault. Fourthly, he must have manifested his
sharing of
a common purpose with the perpetrators of the assault by
himself performing some act of association with the conduct of the
others.
Fifthly, he must have had the requisite mens rea; so, in
respect of the killing of the deceased, he must have intended them
to
be killed, or he must have foreseen the possibility of their
being killed and performed his own act of association with
recklessness
as to whether or not death was to ensue. (As to the
first four requirements, see Whiting,
1986 SALJ 38
at 39.) In order
to secure a conviction against accused No 6, in respect of the
counts on which he was charged, the State had
to prove all of these
prerequisites beyond reasonable doubt. It failed so to prove a
single one of them. It follows that the
appeal of accused No 6 must
succeed in respect of all 5 counts.’