About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 224
|
|
Namane and Another v S (A196/2014) [2016] ZAFSHC 224 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
APPEAL
NO : A196/2014
In
the Appeal of:
MOTLATSI
NAMANE
FIRST
APPELLANT
(Accused
1
a
quo
)
THABO
MAPURU
SECOND
APPELLANT
(Accused
3
a
quo
)
v
THE
STATE
RESPONDENT
CORAM
:
EBRAHIM,
J, MURRAY, AJ
et
CHESIWE,
AJ
HEARD
ON
:
5
SEPTEMBER 2016
JUDGMENT
BY
:
MURRAY,
AJ
DELIVERED
ON
:
15
DECEMBER 2016
[1]
The 1
st
Appellant,
MOTLATSI
NAMANE
(Accused 1
a
quo),
and
the 2
nd
Appellant,
THABO
MAPURU
(Accused 3
a
quo),
were convicted in this Court by Sesele AJ on 9 April 2014 of two
counts of robbery with aggravating circumstances and two counts
of
murder each. Their convictions were based on the doctrine of
‘common purpose’ with fault in the form of
dolus
eventualis.
[2]
On 10 April 2014 Appellants 1 and 2 were sentenced to 15 years’
imprisonment on each of the robbery charges (Charges 1
and 2) and to
life imprisonment on each of the murder charges (Charges 3 and 4).
Appellant 2 was, in addition, convicted
of the unlawful possession of
an unlicensed firearm and unlicensed ammunition (Charges 5 and 6) and
sentenced to a further 5 and
3 years’ imprisonment,
respectively.
[3]
On the same date the Court
a
quo
gave
the two Appellants leave to appeal to the Full Bench of this
Division. Their appeal lies only against their conviction
of murder on Charge 4, however, and against their sentences of life
imprisonment on Charges 3 and 4.
[4]
Ms Leona Smit of the Bloemfontein Justice Centre appeared for the
Appellants, while Mr Marius Strauss of the Office of the Director
of
Public Prosecutions represented the State.
[5]
The Court
a
quo
gave
the State leave to amend the indictment relating to the two murder
charges in Charges 3 and 4 to refer to ‘murder’
as
defined in Schedule 2, Part 1 (a), (b)(i)), (c)(ii) and (d) of the
Criminal Law Amendment Act, Act 105 of 1997, (Charge
3), and as
defined in Schedule 2, Part 1(a) and (c)(ii) of the Criminal Law
Amendment Act, Act 105 of 1997 (Charge 4).
[6]
Accused 2 (Khadebe Mohlalisi), who was originally indicted with
Accuseds 1 and 3, failed to remain in attendance so that, in
terms of
s 157(2) of the Criminal Procedure Act, 51 of 1977 (“the CPA”),
their trials were separated.
[7]
The two Appellants pleaded not guilty to all charges, offered no plea
explanation and denied any involvement in the events of
8 January
2013. They did make formal admissions in terms of s 220
of the CPA, however, regarding the post-mortem reports,
the causes of
death as well as the identity of the two deceased persons (a police
officer, Constable Mogase (“Deceased 1”,
Charge 3), and
their fellow-robber, Louis Morake (“Deceased 2”, Charge
4)), the ballistic reports and the photographs
of the scene.
[8]
Regarding their conviction of murder for the death of Louis on Charge
4, the Appellants contended that the Court
a
quo
had
erred in two respects, namely (a) by finding that the State had
proved its case beyond reasonable doubt, and (b) by convicting
them
of his murder seeing that he was lawfully shot and killed by a police
officer, allegedly ‘after the robbery was completed’.
[9]
Regarding their sentences of life imprisonment on both counts of
murder (Charges 3 and 4), the Appellants contended: (a) that
the
sentences were shockingly inappropriate, and (b) that the Court
a
quo
had erred in finding no substantial and compelling
circumstances to justify a deviation from the prescribed sentences
for murder
as defined in Section 2, Part 1 of Act 105 of 1997.
[10]
Briefly summarised the material evidence regarding Charges 1, 2, 3, 5
and 6 which serves as background to the Appellants’
conviction
on Charge 4, is:
10.1
That the Appellants and,
inter
alia,
Louis, were part of a group of five who planned and on 8 January 2013
executed an armed robbery at Mi-Ning Supermarket in Ipopeng
and who,
in order to rob the Supermarket of cash and several other items,
brought along two loaded firearms and organized two getaway
cars to
enable them to evade arrest (Charge 1);
10.2
That the Appellants at all material times before, during and after
the robbery, were aware that some members of their
group carried
loaded firearms (with one of which Appellant 2 almost shot Appellant
1 in the leg before the robbery even started);
that they entered the
Supermarket, aimed the firearms at the people in the shop, seriously
assaulted a security guard, Mr Ntlanele,
threatened to kill him, and
robbed him of his firearm (Charge 2);
10.3
That, while they were still in the Supermarket, a police van arrived
and, as the group emerged from the shop, both Louis
and Appellant 2
fired shots at the police officer (Deceased 1) who sought cover
behind the van where Louis eventually shot him
in the head at close
range (Charge 3) and robbed him of his firearm;
10.4
That, later, in a shoot-out with the police while he attempted to
evade arrest on his way to the getaway car, Louis was
killed and two
members of the police were wounded (Charge 4); and
10.5
Finally, that Appellant 2 was in possession of a loaded, unlicensed
firearm throughout the robbery (Charges 5 and 6),
with which he
subdued the people in the Supermarket and fired at the deceased
policeman, together with Louis, to procure the group’s
escape,
and fled with the firearm still in his possession.
[11]
Constable Mogase (Deceased 1) was killed in the group’s
presence (Charge 3) when they emerged from the Supermarket and
attempted to flee. By the time Louis was killed (Charge 4),
however, he was by himself since the rest of the group, in fleeing
from the Supermarket, split off in different directions during the
police chase. His final shoot-out with the police occurred
approximately 3 km from the Supermarket, some 50 minutes or more
after he had killed the police officer, but while he was still
on his
way to Tchakela where the second getaway car was waiting.
[12]
The main question is whether, in the circumstances of this particular
case, Louis’s death should have been held to be
a separate
incident, a so-called ‘frolic of his own’, which happened
‘after the robbery was complete’ and
for which no
liability could be imputed to his fellow-robbers, as Ms Smit
submitted; or whether it was correctly held to have been
an incident
that was so inextricably linked to the execution of the robbery that
it was still an integral part of or a foreseen
sequella
to the pre-planned robbery.
[13]
Ms Smith, in contesting the Appellants’ conviction on Charge 4,
advanced four arguments, namely:
13.1
That the Appellants could not be convicted of the murder of a fellow
robber who was shot and lawfully killed by the police;
13.2
That the incident in which their fellow robber, Louis, was shot was
so far removed from the place and time of the robbery
at the
Supermarket, that Louis should have been found to have embarked ‘on
a frolic of his own’ which caused his death,
and that the
Appellants could therefore not be have been held liable for his
demise;
13.3
That the Appellants could not have had the necessary
mens
rea
regarding
Louis’s death since they neither had common purpose with the
shooter, Warrant-Officer Mndebele, nor in any way manifested
sharing
in such common purpose with him; and
13.4
That the Appellants could not have been convicted on the basis of
dolus
eventualis
on
Charge 4 since they should not have been held to have foreseen that
“in the process of this robbery they would encounter
resistance, would try to run away and might be forced to use the
firearm which Louis used”.
[14]
Mr Strauss, on the other hand, argued that the appeal should be
dismissed since the State had proved the Appellants’
liability
on the basis of ‘common purpose’ by proving that both
Appellants were present at the scene of the crime,
i.e. the armed
robbery; that they were aware that some of their group were
armed; that they did make common cause with
their co-accused;
that they manifested their share in the common purpose by proceeding
to the Supermarket with knowledge
of the firearms, holding the staff
and customers hostage, assaulting the old man, and robbing them of
their items; that they
therefore had the required
mens
rea
;
that they foresaw the possibility of one of them being killed
and of someone offering resistance which might lead to the
killing
and that they were indifferent as to whether death ensued or not.
Common
purpose:
[15]
‘Common purpose’ is defined as a situation in which two
or more people either agree (‘collude’) to
commit a crime
or actively associate in a joint unlawful enterprise. Each of them is
responsible for the acts which the other performs
in furtherance of
the common purpose if he or she:
15.1
foresaw the possibility that the other could perform that act in the
furtherance of the common purpose, and
15.2
was indifferent to such acts and their consequences.
[1]
[16]
The participants’ liability is based on their intent (
mens
rea)
[2]
and
arises from their ‘common purpose’ to commit the
crime
[3]
.
If
the participants are charged with having committed a ‘consequence
crime’, such as murder (as
in
casu),
the
State need not prove beyond reasonable doubt that each participant
committed conduct which contributed causally to the ultimate
unlawful
consequence. It need not prove precisely which member of
the common purpose group caused the consequence,
either, provided
that it is established that one of the group brought about the
result.
[4]
This
principle has survived the new constitutional dispensation and was
confirmed in
Thebus
and Another v S
[5]
.
[17]
It is sufficient, therefore, for the State to establish that the
co-accused all agreed to commit a particular crime or actively
associated themselves with the commission of the crime by one of
their group with the requisite fault element (
mens
rea
).
Once this is established, then the conduct of the participant who
actually caused the consequence is imputed or attributed
to the other
participants.
[18]
Ms Smit relied on the ‘common purpose’ requirements which
the Appellate Division set out in
S
v Mgedezi
[6]
,
namely
(1) that the relevant accused must have been present at the
scene of the crime; (2) that he must have been aware
of the
assault by someone else on the victim; (3) that he must have
consciously
shared
[7]
a common purpose in the true attacker’s assault on the victim;
(4) that he must have expressed his association in the
common purpose
by committing some act of association with the other person’s
unlawful conduct; and (5)
that he must have had the
required fault (
mens
rea
)
for the particular offence.
[19]
Regarding these requirements, Ms Smit alleged, more specifically,
that the Appellants cannot be held liable because (1) they
were not
present when Louis was killed
[8]
,
and (2) they did not make or manifest common cause with the policeman
who killed Louis. The said five requirements, however,
apply
and need to be proved when there is no evidence of a prior agreement
or plan to execute the unlawful act from which the killing
stemmed.
Evidence of the prior planning of the armed robbery in the present
case is clear.
[20]
When a group of people participate in a robbery, such as in the
present case, and one of them during the commission of the
offence
kills someone, the mere fact that they all had the intention to rob
is not
per
se
sufficient
to conclude that they also all had the intent to kill. Whether
each Appellant had such intention, needs to be determined
from the
specific facts of this particular case. An inference that the
Appellants had such an intention could be made, for
instance, if the
relevant Appellant knew that the attacker was in possession of a
firearm, or knew that there would be people who
would resist the
robbery
[9]
or would try to
prevent their escape.
[21]
On the evidence of this case there can, in my view, be no doubt that
such an inference can be drawn regarding both Appellants.
Appellant 1 played a major role in instigating and
planning the robbery. Two loaded firearms were
provided
for its execution – one of which was carried and used by
Appellant 2. An inference can safely be made
that they
both knew that the firearms might have to be used to overcome
resistance, or to ensure their freedom after the robbery.
[22]
That both Appellants played an active role, not only in the planning,
but also in the execution of the robbery is clear from
the facts.
Appellant 1, Louis and a third member of the group were sent into the
Supermarket earlier in the morning, for
instance, to inspect and make
a preliminary assessment of the set-up inside the shop. They
concluded that the group would
not be able to execute the robbery
with only two firearms, wherefore, prior to the robbery, three of the
group went off to procure
more firearms and Appellants 1 and 2 went
to arrange two getaway cars.
[23]
When the attempts to procure more firearms failed, Appellant 1 during
the robbery held the security guard for Appellant 2 to
assault,
inter
alia
by hitting him on the head with the back of Appellant 2’s
firearm, injuring him to the extent that he slipped in his own
blood
and fell, only to be robbed of his firearm. The guard’s
firearm enabled Louis, ably backed by Appellant 2, to
shoot the
group’s way out of the Supermarket premises in the face of
police fire, and enabled Louis to go up to Deceased
1 and shoot him
in the head at close range before robbing him of yet another firearm.
[24]
In
S
v Musingadi and Others
[10]
in
which appellants were also convicted of murder although they had left
the scene before the victim was actually killed, the Appellate
Division indicated that the facts raised two closely related issues:
(a) whether the common purpose to rob was expanded as
events
progressed so as to include a common purpose to murder; and, if so,
(b) whether the appellants effectively dissociated themselves
from
the expanded common purpose.
[25]
Both Appellants in the present case manifested their sharing of a
common purpose with their co-perpetrators to commit the armed
robbery
not only by being actively involved in its execution, but also by
their personal attention to the procurement of cars to
ensure their
getaway, and in facilitating their escape from the immediate crime
scene to evade arrest by assisting in the procurement
of another
loaded firearm to eliminate the police officer who was resisting or
blocking their escape with gunfire.
Dolus
eventualis:
[26]
Whether the Appellants indeed foresaw the possibility of fatal
consequences stemming from the armed robbery may be determined
by
inference. The Appellants were both aware of the loaded
firearms with which Appellant 2 and a fellow-robber were
armed.
It would be reasonable to infer, also, that the provision of loaded
guns made both Appellants aware of the possibility
of encountering
‘dangerous resistance’ which might need to be overcome
with the said firearms. A logical inference
would therefore be
that they foresaw that the presence of the loaded firearms might lead
to a shoot-out, and would therefore have
foreseen that in the course
of encountering such dangerous resistance, the use of the firearms
might have possible fatal consequences.
[11]
[27]
On Mpho’s evidence the Appellants were both involved in
pre-planning the armed robbery with firearms to subdue or scare
the
persons in the Supermarket into submission. During the
robbery Appellants 1 and 2 assisted in assaulting and robbing
the
security guard of his firearm which Louis then used to kill the
police officer. Mpho testified, furthermore, that he
saw both
Louis and Appellant 2 shoot in Deceased 1’s direction, then saw
Louis walk up to the police officer, shoot him in
the head and rob
him of his firearm.
Expanded
Common Purpose:
mens
rea
to
Kill
:
[28]
When Louis shot Deceased 1 in the head at close range the group’s
original agreement to perpetrate an armed robbery was
expanded to
include the ‘common purpose’ to kill in order to escape.
The direct close-range shot to the head
patently demonstrated Louis’s
unlawful intent (
mens
rea)
to
kill the officer or whoever stood in his way of his escape.
This intent to kill was carried over into his final shoot-out
when he chased down W-O Mndebele, repeatedly firing at him while
refusing to surrender.
[29]
When the loaded firearms were handed out, both Appellants had to have
foreseen the possibility of a confrontation with armed
security
guards or police officers and of someone being killed in the
cross-fire, not only within the Supermarket but also in the
course of
their pre-planned escape, hence the need to arm themselves with two
further loaded firearms before they fled from the
immediate scene of
the robbery. Yet neither of the Appellants did anything to stop
or prevent this, and, in fact, Appellant
2 actively participated in
the shooting, indifferent as to the consequences.
[30]
The evidence accordingly shows that the Appellants, like the
appellants in
S
v Nkosi
[12]
,
had the necessary
mens
rea
to kill, albeit in the form of
dolus
eventualis,
in
that they foresaw death due to the use of the firearms and, careless
as to the consequences, continued their association with,
and
assistance to, the armed members of the group which included
Appellant 2 and Louis. Criminal liability for Louis’s
death (Charge 4) was therefore, in my view, correctly imputed to the
Appellants on the basis of common purpose.
On
‘a Frolic of his Own’:
[31]
As testified by Mpho, he and Louis were still making their way
between the houses to where the second getaway car was waiting
for
them at Tchakela’s place when Louis’s fatal shoot-out
with the police occurred. It was not as if Louis started
firing
at the police only when the Dog Unit arrived. On Major
Hoffmeister’s evidence, while they were chasing
the robbers,
every time he and the members of the Tactical Response team got
closer, Louis turned around and fired at them.
Even when
they momentarily lost sight of him when he fled into a house, they
heard the gunshots he exchanged with the Dog Unit
and when they
reached the scene of the final shoot-out, he had already been fatally
wounded.
[32]
The relevant evidence regarding Louis’s conduct after they
exited the Supermarket, is the following. Mpho testified
that
he saw Louis and Appellant 2 shoot at Deceased 1, saw Louis shoot
Deceased 1 in the head at close range and saw him take the
deceased’s
firearm.
[33]
Major Hoffmeister testified that while they were following Louis from
the Supermarket, he kept turning around, firing shots
at them. They
continued to chase him until at a shack they lost sight of him, but
heard several gunshots before they found him
shot.
[34]
W-O Mndebele of the dog unit stated that they saw a man matching the
description of one of the suspects running in their direction
(Louis). He was faced with Louis’s firearm. Louis
refused to drop it when ordered to do so, even when he pointed
Louis
with his firearm. When Louis disappeared around the back
of the house, W-O Mndebele left his partner, Constable
Moshebi, with
the dog in front of the house. When he rounded the corner to
apprehend the suspect, he heard gunshots and saw
Louis shooting at
Moshebi. He again pointed at Louis with his firearm but the latter
once more failed to drop his. A running gun-battle
ensued.
Various shots were exchanged between Louis and the two police
officers before Louis started chasing Mndebele
around the police
vehicle while firing more shots. Even when more police vehicles
arrived, Louis still refused to surrender
and chased Mndebele through
the open veld while they were still shooting at each other.
Mndebele did a tactical roll and
fatally shot Louis when the latter
was almost upon him.
[35]
Constable Moshebi was also wounded. They both testified that it was
strange that Louis refused to surrender and kept fighting
both the
police and their dog.
[36]
In my view Louis’s conduct was, on the evidence, neither an
isolated unconnected event nor so strange that it could be
described
as ‘a frolic of his own’, but was simply the reasonably
foreseeable continuation of his unlawful behaviour
during the winding
down of the armed robbery which was perpetrated in the course of
fleeing from that scene towards the getaway
car. The
possibility of his or anyone else’s death during their escape
in view of his conduct and the presence
of the loaded firearms must
indeed have been foreseeable.
[37]
The submission that Deceased 2 had embarked on ‘a frolic of his
own’ therefore has no merit. On the
evidence the
fatal shoot-out, even though 3km from the Supermarket, was not a
sudden, extraordinary, isolated or unexpected event
disconnected from
the robbers’ escape from the Supermarket. In my view it
was merely the natural extension
(sequella
)
or continuation of the armed robbery. The group’s pre-planned
escape to and with the getaway cars was, in my view, an integral
part
of the planned robbery, as demonstrated by Louis’s running
gun-battle with various police officers, and in the execution
of
which plan Louis was still bent on killing any police officer who
tried to stop him or his fellow-robbers, as he had already
done with
Deceased 1.
[38]
Louis’s determination not to be arrested, which manifested
itself in his refusal to surrender and his unlawful engaging
in the
shoot-out with the police, was, in my view, not so unusual and
unforeseeable as to warrant its being classified as ‘a
frolic
of his own’, especially in the light of his earlier killing of
a police officer to secure the group’s escape.
It differs
from the circumstances in
S
v Molimi and Another
[13]
on which Ms Smit relied
for such contention. There a robber was held to have been
‘on a frolic of his own’
when he, in the course of an
armed robbery, took hostage a young man who was then fatally wounded
by a bystander. The
Appellate Division in those
circumstances upheld the contention that the death of the hostage was
not foreseeably part of the common
purpose to perpetrate the armed
robbery. On the facts of the present case, however, armed
resistance to the group’s
escape was indeed foreseeable,
foreseen and planned for and so, inevitably, was the possibility of
fatal consequences.
[39]
I therefore agree with Mr Strauss that the robbery was not yet
completed when Louis was killed. His death occurred
during his attempt to evade arrest, on his way to the pre-arranged
getaway car waiting for the group at Tchakela’s place,
while he
was still armed with his robbed, loaded firearm to counter any
‘dangerous resistance’ he might encounter along
the way.
Similarly, Appellant 2 was still in possession of his loaded firearm
as he fled. The group, after all, still
had to meet up
and divide their loot.
[40]
In view of Louis’s continuous exchange of gunfire with the
police from the moment the group exited the shop up to the
point of
his death, I do not regard this case as one in which the
foreseeability of someone being fatally wounded during the group’s
escape ‘would render the concept of foreseeability so
dangerously elastic as to deprive it of any utility’
[14]
as held in
S
v Nkosi.
The
Court
in
S v Mkize
[15]
held, after all, that once it is proved that an accused was party to
a common purpose to commit an armed robbery, and that he foresaw
the
possibility of someone being killed in the process, the place where
the victim was killed need not have been in his contemplation
for him
to be liable.
Lawfully
killed by a Police Officer:
[41]
The submission that the Appellants could not be held liable for
Louis’s death because he was lawfully shot and killed
by the
police in my view has no merit either. As Majiedt JA
pointed out in
S v Nkosi
: “
“
our courts
have consistently held accused persons who engage in a wild shoot-out
with others in the course of an armed robbery,
criminally liable on
the basis of
dolus
eventualis
for
any unexpected deaths that may result.”
[16]
[42]
Murder is defined as the intentional, unlawful killing of another
human being. It was submitted that the Appellants cannot
be
held liable for Louis’s killing, since that was lawfully done
by a police officer. This submission was based on
an erroneous
premise, however, namely that, in order to have liability imputed to
the Appellants, they must have made and manifested
a common purpose
with the police officer as the ‘actual shooter’, which of
course they did not do. It is
the unlawfulness of Louis’s
shoot-out with the police that is imputed to them, in fact, and it is
with him that they must
have made and indeed did make common purpose.
Neither the lawfulness of W-O Officer Mndebele’s conduct nor
the Appellants’
lack of common purpose with him, therefore
exculpates the Appellants from imputed liability for Louis’s
killing as submitted.
Dissociation:
[43]
The next question to determine, is whether the Appellants did enough
to dissociate themselves from the group’s common
purpose to be
exculpated from Louis’s death. Common-purpose
liability is based on association with the commission
of the crime by
the other participants. Its converse is dissociation. The
question of when the joint action ceased
and a participant could be
regarded as one who has stopped participating, has been addressed in
several cases.
[44]
The Appellate Division in
S
v Musingadi and Others
[17]
pointed out that not every act of apparent disengagement would
constitute an effective disassociation. Whether there had
been
sufficient dissociation would depend on
inter
alia
the
circumstances; the manner and the degree of an accused’s
participation; how far the commission of the crime had
proceeded; the manner and timing of disengagement; and,
in some instances, what steps the accused took or could have
taken to
prevent the commission or completion of the crime.
[45]
In holding that the relevant appellants had not done enough to
dissociate themselves from the unlawful action
[18]
,
the Appellate Division stated, as repeated in
S
v Nkosi
[19]
,
that the greater the accused’s participation, and the further
the commission of the crime had progressed, the more would
be
required of such accused to constitute an effective disassociation,
even to the point that he may be required to take steps
to prevent
the commission of the crime or its completion. The Court
held the effectiveness of the dissociation to be
a matter of degree
which, in a borderline case, calls for a sensible and just value
judgment. (See also
S
v Wana and Others
[20]
).
[46]
In order to assess the adequacy of the Appellants’
dissociation, one therefore needs to evaluate the nature and extent
of their involvement in the robbery and consequently the degree to
which they needed to dissociate to escape liability. Their
unquestionably direct and active participation in the planning and
execution of the robbery has already been dealt with.
Their
further involvement once they exited the building therefore needs to
be scrutinised.
[47]
Obviously Appellant 2 knew that he might have to, and did indeed, use
his firearm and, despite knowing that death might ensue
from such an
exchange of fire, nevertheless proceeded to shoot at the police
officer, and thereafter to flee with the firearm still
in his
possession. Appellant 1, although not armed, on Major
Hoffmeister and Mpho’s evidence, at first fled through
the veld
towards the houses with Mpho and Louis, whom he knew to have shot
Deceased 1 in the head and to be in possession of the
two loaded
robbed firearms, and parted ways with them only when the pursuing
police officers got closer.
[48]
Although Appellant 2, on Mpho’s evidence, fled in another
direction immediately after Louis shot Deceased 1 in the head,
there
is no evidence that he disassociated himself from the killing by even
trying to dissuade or stop Louis from that or further
killing or by
abandoning his loaded firearm which he might have had to use should
he encounter further ‘dangerous resistance’
or attempts
to arrest him.
[49]
From the case law it is clear that mere running away after having
been as materially involved as the Appellants had been in
both the
planning and the execution of the robbery which was expanded into a
common purpose to kill, would not constitute adequate
dissociation:
much more would be required of the Appellants for their dissociation
to be sufficient to exculpate them from liability
for the killings.
In
S
v Ndebu
[21]
,
for
instance, the Court made it clear that last-minute withdrawal from a
common purpose just before the fatal shot was fired did
not
demonstrate sufficient dissociation to exculpate one of the
participants in the common purpose, although it did serve as a
mitigating factor with regard to sentence.
[22]
In
S
v Sibeko and Anothe
r
[23]
,
similarly, it was held that the fact that an accused ran away,
leaving his co-accused behind, did not amount to dissociation.
[50]
In
S
v Mkize
[24]
the court stated, furthermore, that where it is sought on an
accused’s behalf to establish a reasonable possibility that
he
ceased his active participation and abandoned the intention to commit
the relevant unlawful act before a victim was killed,
as
in
casu,
the
accused’s failure to give evidence that he so abandoned that
intention was relevant since it is not the Court’s
task to
speculate on excuses for his conduct in the absence of any
explanation from him. Despite the overwhelming evidence
against
them, the two Appellants in the present matter, however, elected
merely to deny being involved in the events of 8 January
2013 at all.
[51]
What more than running away is required for effective dissociation
after active involvement was addressed in several cases.
S
v Nomakhlala
[25]
is a case in which the Appellate Division did accept an appellant’s
dissociation from the common purpose, for instance.
The
Court distinguished it from
S
v Ndebu
on the basis that the appellant in
Nomakhlala
did not merely run away. He actually refused to comply with an
instruction to stab the deceased before he withdrew from the
scene of
the crime. Furthermore, he did not initially participate in the
commission of the crime with ‘a full appreciation
that death
might ensue’
[26]
, as, in
my view, the Appellants in the present matter did.
[52]
In
S
v Nzo
[27]
,
which Hiemstra
[28]
labelled ‘a
striking example of adequate dissociation from a common purpose’,
the appellant had, according
to Hefer JA, effectively
dissociated himself from the gang’s common purpose to kill the
deceased by voluntarily making a
full confession of his participation
in the planning of the crime ten hours before the killing took place.
[53]
S
v Singo
[29]
is another example of an appellant who was held to have adequately
abandoned his intention to kill the deceased and to have effectively
dissociated himself from the common purpose to kill the deceased.
In reaching this conclusion Grosskopf JA distinguished
between dissociation from a common purpose based on active
association and dissociation from a common purpose based on prior
agreement.
The question was whether the appellant when he left
the scene of the initial assault foresaw the possibility that the
victim might
be murdered by the crowd of which he was initially part.
That Court emphasised that in the end the difference between
association
and dissociation is a pragmatic value judgment, taking
account of all the facts, including the way in which the common
purpose
arose.
[30]
[54]
S
v Nduli
[31]
,
for instance, involved a common purpose formed by agreement, as
in
casu
,
but, on the facts, no possible act of dissociation. The Court,
however, did refer to “timely and unequivocal notification
to
the co-conspirators of the decision to abandon the common unlawful
purpose”.
[32]
That did not happen in the present case either, however.
[55]
What then was the extent of the Appellant’s involvement and
consequently the degree to which they needed to dissociate
to escape
liability? The armed robbery which was pre-planned, expanded
into a common purpose to kill with the fatal shooting
of the police
officer in front of the Supermarket to secure the group’s
escape. The Appellants consciously rendered
aid to the
actor (Louis) by affording him the opportunity or means to advance
the commission of the offence.
[56]
On Mpho’s evidence the Appellants pre-planned the armed
robbery, provided loaded firearms to subdue or scare the persons
in
the Supermarket, secured two getaway cars and during the robbery
helped Louis rob the security guard of his firearm, which Louis
then
used to shoot and kill Deceased 1 and probably to deter Major
Hoffmeister, the members of the Tactical Response Unit and the
two
officers of the Dog Unit. Appellant 2 and Louis shot in the
direction of the Deceased 1 before Louis, in their presence,
walked
up to the officer, shot him in the head point blank, and robbed him
of his firearm. The Appellants did nothing to
prevent or stop
this.
[57]
The Appellants ran off with the money, robbed items and the firearms,
with the police in pursuit. They escaped
arrest, went
into hiding, were arrested only after informants led the police to
them and even in Court still refused to admit their
involvement in
the planned armed robbery and its aftermath.
[58]
I find Olivier JA’s observation in
S
v Lungile
specially
apposite to their conduct, namely that a mere departure from the
scene is a neutral factor
[33]
and, accordingly agree that, on the facts of the present matter, it
is more likely that the Appellants fled because they were afraid
of
being arrested, or of being injured, or to make good their escape
with the stolen money and goods, than to dissociate themselves
from
the extended common purpose to kill whoever got in the way of their
escape.
[59]
In view of their active participation in the pre-planning and
execution of the robbery, their assistance by subduing the security
guard to enable Louis to rob him of his firearm and Appellant 2’s
assistance in shooting the police officer to enable them
to escape
and to take with them yet another firearm, something more was
required from the Appellants to dissociate themselves from
the common
purpose than to simply run off in different directions when the
pursuing police came too close for comfort.
[34]
As the court held in S v Beahan
[35]
where there was participation in a substantial way ‘a
reasonable effort to nullify or frustrate the effect of his
contribution
is required’
.
[60]
And as
Gibbs J
at 350, held:
[Even] a “declared
intent to withdraw from a conspiracy to dynamite a building is not
enough. If the fuse has been set, he
must step on the fuse. It seems
entirely reasonable to insist that the person who has counselled or
procured another to commit
a crime or has conspired with others to
commit a crime, should accompany his withdrawal with such action as
he can reasonably take
to undo the effect of his previous
encouragement or participation.”
[61]
There is no evidence that the Appellants in this case did more than
run away. Apart from that, instead of stopping their
fellow
robbers or helping the police, they both went into hiding after
successfully evading the police during their pursuit, and
were only
captured because of the information provided by Mpho and/or some
other informants. In my view, therefore, they
failed to
adequately dissociate themselves from the expanded common purpose,
which included the necessary
mens
rea
to
murder, to the extent necessary to exculpate them from liability for
Louis’s death.
[62]
I am therefore of the view that the State did prove beyond reasonable
doubt the Appellants’ liability on the basis of
common purpose
and
dolus
eventualis
regarding Charge 4. Their conviction of murder on Charge 4 must
therefore stand.
AD
SENTENCE
:
[63]
It is trite law that the sentence of an accused must be balanced
between the interests of society, the offence and the personal
circumstances of the accused.
[36]
It is also trite that a Court of Appeal will only interfere with a
sentence if it is shockingly inappropriate or disproportionate
to the
crime, or if an irregularity occurred during sentencing.
[37]
[64]
In the present case Ms Smit submitted that the Appellants’
sentences of life imprisonment on the two murder charges were
disproportionate and that the Court
a
quo
had
misdirected itself in finding that there were no substantial and
compelling circumstances to justify the imposition of lesser
sentences.
[65]
In establishing whether there are indeed substantial and compelling
circumstances which would justify a departure
from the prescribed
minimum sentences, a court needs to determine whether the mitigating
circumstances, cumulatively, outweighs
the the aggravating
circumstances. In the present instance the Court
a
quo
held
the aggravating circumstances to outweigh the mitigating ones, and
therefore concluded that there were no substantial and compelling
circumstances to justify the imposition of lesser sentences than life
imprisonment on the murder charges.
[66]
In reaching that conclusion the Court
a
quo
merely
listed, without any evaluation, the following personal circumstances
of the Appellants as presented by their legal representatives:
Regarding
Appellant 1
:
66.1
That he was 28 years old at the time of the commission of the
offence; that he was married with one minor child; that
not only was
he self-employed, selling vegetables and earning R800.00 per day, but
also had two employees whom he paid R70.00 each
per day; that he was
arrested on 9 January 2013 and had been in custody awaiting trial for
15 months; that he never attended school;
and that he was a first
offender with no previous convictions.
Regarding
Appellant 2
:
66.2
That he was 25 years old at the time the offence was committed; that
he was married with one minor child; that he was
unable to find
permanent work, but was doing casual work from which he earned
between R1800.00 per day; that he was arrested on
18 February 2013
and has been in custody awaiting trial for 14 months; that he
attended school only up to Standard 5 in Lesotho;
and that he was a
first offender with no previous convictions.
[67]
These factors the Court
a
quo
then
summarised, also without evaluating their impact or significance, and
without indicating whether they individually or cumulatively
served
as mitigating factors, as: that the Appellants were about
25 and 28 years old, respectively; that Appellant
1 had no schooling
and Appellant 2 had only Standard 5; that they had limited financial
means with incomes from the informal market
and casual work,
respectively; and that they were both breadwinners with dependants to
take care of.
[68]
The Court
a
quo
made
no mention of the fact that the Appellants were both first offenders
with no previous convictions and simply dismissed their
lengthy
periods spent in custody as not constituting substantial and
compelling circumstances.
[69]
I agree with Ms Smit that although none of the above circumstances
individually constitutes substantial and compelling circumstances,
they should have been accorded their due cumulative weight.
Regarding time spent in custody the court in
Radebe
v S
[38]
stated, for instance, that:
“
The test
is not whether on its own the period of detention constitutes a
substantial and compelling circumstance, but whether the
effective
sentence proposed is proportionate to the crime or crimes committed :
Whether the sentence in all circumstances, including
the period spent
in detention prior to conviction and sentencing, is a just one.”
[39]
[70]
The most serious omission, in my view, however, is that the Court
a
quo
clearly
did not take into account that Appellants 1 and 2 were convicted of
murder based on common purpose and that their criminal
liability did
not arise out of their own direct perpetration of the killings, but
was imputed to them on the basis of their association
with the
perpetrator. It did not, therefore, take into account or
provide for their lesser moral blameworthiness in the sentencing.
[71]
It is accepted practice that if an accused is convicted on the main
offence on the basis of
dolus
eventualis
and
common purpose, any lower degree of blameworthiness should be
expressed in the sentence.
[40]
This was confirmed in
S
v Ndebu
[41]
with reference to an accused’s last-minute withdrawal from a
common purpose before the fatal shot was fired, which, although
it
did not constitute adequate dissociation to escape common purpose
liability, did constitute a lesser degree of blameworthiness
so as to
justify a lesser sentence.
[72]
In coming to its conclusion regarding the absence of substantial and
compelling circumstances, the Court
a
quo
considered
the following aggravating factors as serious enough to outweigh the
mitigating circumstances:
That
robbery with aggravating circumstances and murder are serious
offences which are both prevalent in the Court’s area of
jurisdiction; that brutal physical and emotional injuries were
inflicted on their victims during the course of the robbery; that
the
murder of Deceased 1 had a devastating impact on his family,
colleagues and the community; that the Appellants planned
the robbery
and their escape and that they had had ample opportunity to
dissociate themselves from the execution of their plan,
but failed to
do so and persisted in their denial of guilt.
[73]
The Court
a
quo,
in
finding no substantial and compelling circumstances to exist,
therefore clearly failed to take into account the fact that the
Appellants were not the actual perpetrators in the two murder charges
but had been convicted on the basis of
dolus
eventualis
in
terms of the common purpose doctrine.
[74]
That, especially taken in conjunction with the fact that they were
both first offenders and that they had both spent considerable
periods in custody awaiting trial, together with their listed
personal circumstances, in my view should have been regarded as
sufficiently weighty mitigating circumstances, cumulatively, to
outweigh the undoubtedly seriously aggravating circumstances pointed
out by Mr Strauss, and thus to constitute substantial and compelling
circumstances which would justify a deviation from
the
prescribed sentences of life-imprisonment regarding the two murder
charges. That misdirection gives this Court a right
to
intervene in the sentencing.
[75]
Both Appellants were very involved in planning and executing the
armed robbery which led to the murders. Even though
life
imprisonment in my view is disproportionate to the murders in the
circumstances of this case, it would not be in the interests
of
justice to impose less than severe sentences on them. The fact that
they did nothing to disassociate themselves from the criminal
activities except to flee with a firearm and some of the robbed items
when they were pursued by the police, that they did nothing
to assist
the police to solve the murder and that they persisted in Court to
deny any involvement despite the direct evidence against
them,
justify sentences which would reflect the seriousness of the offence,
serve as appropriate retribution, satisfy the community’s
sense
of justice and serve as a deterrent to others.
[76]
Appropriate sentences
pro
rata
to the Appallant’s individual participation in the robbery
should therefore be imposed. As far as Charge 3 is
concerned, the Appellants were both present when the police officer
was shot and neither of them did anything to prevent that.
They
both assisted Louis in robbing the security guard of his firearm and
so enabled him to kill Deceased 1 and conduct a running
shoot-out
with the officers of the Dog Unit. Appellant 2 also fired shots at
Deceased 1 although he was not the one who fired the
final fatal
shot. Regarding Charge 3 I therefore deem a sentence of 25
years’ imprisonment to be proportionate to Appellant
2’s
involvement and one of 20 years’ imprisonment to be appropriate
for Appellant 1.
[77]
Regarding Charge 4 neither of the Appellants were physically present
during the shoot-out. They could therefore
at that stage
no longer do anything to intervene or dissuade Louis continued
refusal to surrender. In view of their
active
participation in the planning and execution of the robbery which
expanded into a common purpose to kill in order to escape
arrest, and
their failure to effectively dissociate themselves from the common
purpose to kill, however, I deem sentences of 18
years’
imprisonment to be appropriate for both Appellants on Charge 4.
NOTE:
This
is the majority judgment which is delivered upon the authorisation of
the Judge President of this Division, since
EBRAHIM
J,
who has expressed a strong dissenting view regarding the Appellants’
conviction on Charge 4, has unfortunately been unable
to deliver her
intended minority judgment because of a prolonged serious illness.
THE
FOLLOWING ORDER IS MADE:
1.
The
appeal against the Appellants’ conviction of murder on Charge 4
is dismissed.
2.
The
appeal against the Appellants’ sentences of life-imprisonment
on Charges 3 and 4 succeeds.
3.
The
Appellants’ sentences of life imprisonment on Charges 3 and 4,
respectively, are set aside and substituted with the following
:
3.1
Appellant
1 is sentenced to 20 (TWENTY) years’ imprisonment on Charge 3;
3.2
Appellant
2 is sentenced to 25 (TWENTY-FIVE) years’ imprisonment on
Charge 3;
3.3
Appellants
1 and 2 are sentenced to 18 (EIGHTEEN) years’ imprisonment each
on Charge 4.
3.4
Appellant
1’s sentences of 20 years’ imprisonment on Charge 3 and
18 years’ imprisonment on Charge 4 are to be
served
concurrently with the sentences of 15 years’ imprisonment on
Charge 1 and 15 years’ imprisonment on Charge 2
which were
imposed on him by the Court
a
quo.
3.5
Appellant
2’s sentences of 25 years’ imprisonment on Charge 3 and
18 years’ imprisonment on Charge 4 are to be
served
concurrently with the sentences of 15 years’ imprisonment on
Charge 1, 15 years’ imprisonment on Charge 2, 5
years’
imprisonment on Charge 5 and 3 years’ imprisonment on Charge 6
which were imposed on him by the Court
a
quo.
__________________
MURRAY,
AJ
I
concur :
__________________
CHESIWE,
AJ
On
behalf of the Appellants : Ms L Smit
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of the State :
Adv M Strauss
c/o
The Deputy Director of Public Prosecutions
Free
State Provincial Division
Bloemfontein
[1]
Hiemstra’s Criminal Procedure, Issue 1, at 22-27; See also R v
Hercules 1954 (3) SA 826 (A)
[2]
S v Malinga 1963 (1) SA 692 (A)
[3]
Burchell & Milton, Principles of Criminal Law, 2
nd
Ed, at p. 393
[4]
Burchell & Milton,
supra
, at p. 393
[5]
2003 (10) BCLR 1100
(CC) at par [50].
[6]
1989 (1) SA 687
(A) at 705 I – 706 C
[7]
Snyman, Strafre, 3
rd
Ed, at 283
[8]
Snyman,
supra,
at 283:
[9]
Snyman, Strafreg, at p. 284
[10]
2005 (1) SACR 395 (SCA)
[11]
S v Nkosi,
2016 (1) SACR 301
at par [13] at 307i – 308b
[12]
S v Nkosi 2016 (1) SACR 301 (SCA)
[13]
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA) at
[35]
– [36]
[14]
Sv Nkosi,
2016 (1) SACR 301
(SCA) at [4] at 304
[15]
1999(2) SACR 632 (W)
[16]
Snyman, Criminal Law 5
th
Ed (2008) at 201.
[17]
S v Musingadi and Others
2005 (1) SACR 395
(SCA) at para [35] at 407
h - i
[18]
S v Musingadi,
supra,
at para [40] at 409 i
[19]
2016 (1) SACR 301 (SCA)
[20]
2015 (1) SACR 374
(ECP)
[21]
1986 (2) SA 133
(ZS) at 164
[22]
Burchell & Milton,
supra
, at p. 404
[23]
2004 (2) SACR 22
(SCA) at paras [7] – [10]
[24]
1999 (2) SACR 634
[25]
1990 (1) SACR 300 (A)
[26]
FH Grosskopf JA,
supra
n92 at 304 b-c
[27]
1990 (3) SA 1
(A) at p. 162
[28]
Hiemstra’s Criminal Procedure,
supra,
Issue 8 at 22-31
[29]
1993 (1) SACR 226 (A) [1993 (2) SA 765 (A)]
[30]
Burchell & Milton,
supra
, at p. 405
[31]
1993 (2) SACR 501 (A)
[32]
Supra,
at p. 504 E – F
[33]
At par [23] at 14
[34]
Burchell & Milton,
supra
, at p. 404
[35]
1992 (1) SACR 307
(ZS) at 324B-C
[36]
S v Banda and Others 1991 (2) SA (D) at 355 A
[37]
S v Malgas
2001 (1) SACR 469
(SCA) at para. [12]
[38]
(726/12) [2013] ZACHA 31 (27 March 2013) at para. [14]
[39]
See also : S v Kruger
2012 (1) SACR 369
at 373 C - D
[40]
R v Longone
1938 AD 532
; R v Dube 1968 (2) SA 37 (RA)
[41]
1986 (2) SA 133
(ZS)