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[2018] ZASCA 152
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Gwababa v S (1290/2016) [2018] ZASCA 152 (8 November 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 1290/2016
In
the matter between:
LUNGISA
GWABABA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Gwababa
v The State
(1290/2016)
[2018] ZASCA 152
(08 November 2018)
Coram:
Cachalia,
Saldulker and Mbha JJA and Matojane and Rogers AJJA
Heard:
In
chambers (November 2018)
Delivered:
08 November 2018
Summary:
Criminal
law - refusal of leave to appeal by Supreme Court of Appeal -
reconsideration of decision of two judges of the court refusing
leave
to appeal in terms of s 17(2)(
f)
of the
Superior Courts Act 10 of 2013
- principles in relation to
application of the doctrine of common purpose to be considered -
reasonable prospect of success that
another court may arrive at a
different conclusion.
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 25
August 2016 is set aside and the applicant is granted leave to appeal
his conviction to the
full court of the Gauteng Division of the High
Court, Pretoria.
JUDGMENT
Saldulker JA (Cachalia and Mbha JJA
and Matojane and Rogers AJJA concurring):
[1]
This case arises from a decision of the then Acting President of this
court, (Maya P) in terms of
s 17(
2)(
f
)
of the Superior Courts Act 10 of 2013 (the Act) to refer a decision
of two judges of this court, dismissing an application for
leave to
appeal, for reconsideration by this court.
[2]
The applicant, Mr Lungisa Gwababa, who was at all relevant times a
member of the South African Police Service, was the sixth
accused in
a criminal trial in the Gauteng Division of the High Court, Pretoria
(Bam J) in which he, together with eight other
accused, faced a
charge of murder. The applicant and seven of his co-accused were all
convicted as charged on 25 August 2015 and
each sentenced on 11
November 2015 to 15 years’ imprisonment. Accused 9 was found
not guilty and discharged. Applications
by the applicants for leave
to appeal their convictions and sentences were dismissed by the trial
court on 11 December 2015.
[3]
Aggrieved by this decision, the various accused petitioned this court
in separate applications. This court has already granted
the
following of the present applicant’s co-accused leave to appeal
to a full court of the Gauteng Division against their
convictions and
sentences: accused one, accused five, accused seven and accused eight
in
S v Malele
& others
[2017]
ZASCA 173
; 2017 JDR 1956 (SCA case no 723/16 and 724/16, judgment on
1 December 2017); accused four in
S
v Bongamusa Mdluli
, case no
348/16 (on 24 May 2016); accused three in
S
v Percy Mnisi
(case no
1332/17 on 8 March 2018); and accused two in
S
v Thamsanqa Ngema,
(case no
23/17 on 9 March 2017).
[4]
However, an application by the present applicant for leave to appeal
against his conviction and sentence to this court was refused
on 25
August 2016 by two Judges of this court. The applicant then sought a
referral of that order for reconsideration, to Maya
P, in terms of s
17(2)(
f
)
of the Act and if necessary, variation. She decided in his favour,
and it is that decision that has culminated in the matter before
us.
[5]
I turn briefly to consider the particular facts of this case. It is
common cause that on 26 February 2013, the deceased, Mr
Silvesta
Jossefa Marcia was arrested for a traffic violation near a taxi rank
in Daveyton, Benoni. The applicant and his co-accused
were all said
to have been involved in his arrest. During the arrest, handcuffs
placed on the deceased were attached to a steel
bench at the back of
the police vehicle. The applicant who was the driver of the police
vehicle then drove off after the police
felt threatened by the crowd
that had gathered there. Mr Marcia was still attached to the bench at
the back of the vehicle with
part of his lower body being dragged on
the ground. Subsequently, the deceased was transported to the
Daveyton Police Station and
placed in the holding cells, where he
later died. The version of the applicant was that he did not look at
the rear view mirrors,
and drove off believing that the deceased was
inside the vehicle until he noticed, when he was about 200 metres
ahead, that his
colleagues behind him were flashing their vehicle’s
lights indicating that he must stop. It is only when he stopped that
he discovered that the deceased had fallen out of the vehicle.
According to the medical evidence presented in the trial court, the
cause of the deceased’s death was said to be extensive soft
tissues injuries and hypoxia. According to the State pathologist,
Dr
Skosana, this was caused by a combination of the injuries the
deceased had sustained during his first scuffle with the police
when
he resisted arrest, when he was dragged behind the police vehicle and
violence to which he was allegedly subjected in the
police cells.
[6]
The trial court found that the State had proved beyond reasonable
doubt that the applicant and his co-accused all knew that
the
deceased was being dragged behind the vehicle, and thus, they foresaw
that in being dragged behind the vehicle the deceased
would sustain
serious injuries which could result in his death, yet they persisted
in their conduct clearly reconciling themselves
with the eventual
result. The trial court found that the accused assaulted the deceased
in the police cell thereby seriously injuring
him, and that there
could be no doubt that they foresaw that the injuries may result in
his death. The trial court rejected the
applicant’s version
that he was unaware that the deceased was being dragged behind the
vehicle when he drove away.
[7]
Maya P prepared a judgment setting out her reasons for referring the
decision refusing leave to appeal for reconsideration.
She expressed
doubts about the trial court’s application of the doctrine of
common purpose as enunciated in
S
v Mgedezi & others
1989
(1) SA 687
(A) at 705I–706B; and confirmed by the
Constitutional Court in
S v
Thebus & another
[2003] ZACC 12
;
2003
(2) SACR 319
(CC)
.
She
agreed with the observations made by the court in
S
v Malele
(para 3 above)
that there could be no doubt on the evidence that the deceased was
assaulted after he had been placed in the holding
cells. She had
misgivings about the trial court’s finding that it was accused
two to eight who assaulted the deceased in
the cells, when in fact
the direct evidence on behalf of the State was that of a single
witness, Warrant Officer Ngamlana, who
stated that the deceased was
surrounded by accused two to eight, but that he could not see what
was happening and who, it must
be said, did not identify any of the
accused specifically in relation to the alleged assault on the
deceased in the holding cells.
Maya P stated that it was not clear
from the judgment whether only one or more of the policemen within
the cell assaulted the deceased,
a view also shared by the court in
S
v Malele
.
[8]
Furthermore Maya P had difficulty with the trial court’s
rejection of the applicant’s version ie that he was unaware
that the deceased was being dragged behind the police vehicle as he
drove away, especially taking into account the circumstances
prevailing at the scene of the deceased’s arrest, including the
threatening crowd, and the subsequent succession of events.
She also
questioned the trial court’s conclusion that the applicant’s
form of intent (
mens rea
)
was
dolus eventualis
.
In her view, another court might find differently.
[9]
For all the aforegoing reasons, Maya P concluded that a grave
injustice may result if she were to refuse to refer the decision
of
25 August 2016 dismissing the applicant’s application for leave
to appeal for reconsideration and if necessary, variation.
That in
itself constituted exceptional circumstances enabling her
mero
motu
to refer the decision
for reconsideration.
[10]
Maya P also recorded that in separate applications the other accused
have been granted leave by this court to appeal against
their
convictions and related sentences to the full court of the Gauteng
Division, Pretoria. The applicant also relies on the fact
that his
co-accused have been successful in their applications in terms of s
17(2)
(f)
upon facts and questions of law similar to those upon which his own
conviction is based. It is necessary to record that the State
in its
heads of argument has conceded that it is in the interests of justice
that leave to appeal be granted.
[11]
Although we share Maya P’s misgivings in relation to the
findings and assessment of the evidence, we make no final evaluation.
To do so would be to usurp the role of the court adjudicating the
appeal. The sole question therefore is whether leave to appeal
should
be granted to the applicant. In our view there is a reasonable
prospect of success that another court may arrive at a different
conclusion in the circumstances.
[12]
For the reasons set out above, the following order is made:
The
decision of this court dated 25 August 2016 is set aside and the
applicant is granted leave to appeal his conviction to the
full court
of the Gauteng Division of the High Court, Pretoria.
_______________
H
K Saldulker
Judge
of Appeal
Appearances
For Appellant: F van As
Instructed by:
Pretoria
Justice Centre
c/o
Bloemfontein Justice Centre
For Respondent: G D Mosetlha
Instructed by:
The Director of Public Prosecutions,
Pretoria
c/o The Director of Public
Prosecutions, Bloemfontein