Brief Summary

Criminal Law — Murder — Conviction for murder and related charges — Appellant charged with murder, attempted murder, robbery, and unlawful possession of firearms — Appellant pleaded not guilty and claimed no recollection of events — Evidence presented included ballistic reports linking firearm to the crime and eyewitness accounts — Appellant's conviction upheld based on overwhelming evidence of involvement in the crimes, including the fatal shooting of a child during a robbery.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a criminal appeal to the Full Court of the Gauteng Division, Pretoria, directed against both convictions and sentences imposed by the trial court. The appellant, Joseph Masemola, appealed against his convictions on multiple serious charges arising from two incidents in November 2001, as well as the sentences imposed. The respondent was the State.

The appellant was tried in the High Court (Gauteng Division, Pretoria) before Els J, with the trial commencing on 8 November 2002 and judgment delivered on 21 November 2002. He pleaded not guilty to all counts and advanced a plea explanation to the effect that he knew nothing about the incidents and could not recall the relevant dates or his whereabouts. The trial court convicted him on counts 1, 2, 3, 6, 7 and 8, and acquitted him on counts 4 and 5.

The procedural history after conviction was protracted. Leave to appeal was refused by the trial judge on 26 January 2005. On 21 October 2012, the Supreme Court of Appeal granted leave to appeal against convictions and sentences to the Full Court of the Division. The appeal was heard on 22 April 2016, culminating in the Full Court’s judgment delivered on 13 May 2016.

The general subject-matter of the dispute concerned the appellant’s alleged participation in a housebreaking and robbery at a Groenkloof residence in which a two-year-old child was fatally shot and the child’s father injured, together with a separate robbery of a security officer during which a licensed 9mm pistol was taken and later found in the appellant’s possession. A central feature of the appeal was whether the trial court had misdirected itself in attributing common purpose liability to the appellant for the murder and attempted murder, particularly by inferring that he must have known of the presence of a firearm at the Groenkloof scene.

2. Material Facts

The court relied on a combination of formal admissions and viva voce evidence to establish the relevant factual foundation. Certain facts were common cause by way of admissions under section 220 of the Criminal Procedure Act 51 of 1977. These included that a post-mortem examination was conducted on the deceased child, Rousseau Alexander Strydom, that the post-mortem findings and cause of death were correct (a gunshot wound to the right upper abdomen and chest), and that the photographic and scene-related exhibits were admitted.

The undisputed evidence established that, in the early hours of 23 November 2001, two intruders were present in the bedroom of Rousseau Strydom and the child’s mother (Fredrica Maria van Niekerk), where the child was asleep between his parents. The father testified that one intruder pointed a firearm at him and threatened to shoot; shots were fired during a struggle, resulting in the father being grazed and the child being shot. The intruders fled after the father shouted that the child had been shot, and police arrived while the events were still unfolding or immediately thereafter. Police shot dead one assailant at the scene, later identified as Alfred.

A ballistic report admitted by agreement established that the firearm found in the possession of the assailant shot dead at the Groenkloof scene fired the shot(s) that killed the child. That firearm had an obliterated serial number. Importantly for the appeal, the complainant father could not identify the appellant as one of the assailants.

The State’s case implicating the appellant in the Groenkloof incident depended materially on the evidence of Esau Kgaduke, a hostel resident who shared accommodation with the appellant and others (including Alfred and an Oscar). Esau testified that, on the evening of 22 November 2001, he saw the appellant, Alfred and Oscar leaving the hostel. He did not see them again that night. The next morning the appellant told him that they had gone to Sunnyside, that Alfred did not return, and that the appellant had heard shots at a house in Groenkloof. Esau’s evidence further attributed to the appellant a version that Alfred and Oscar entered the house while the appellant remained outside; the appellant later saw police, called the others, and fled with Oscar.

Esau also testified to a matter bearing on credibility: he stated that the investigating officer offered him money to make a statement implicating the appellant. He nevertheless maintained that what he said about the appellant’s account was true. The trial judge recorded an observation during Esau’s testimony that the appellant made threatening gestures toward him. The appellant did not testify, and his case was closed without evidence.

A second incident occurred later on 23 November 2001 (that same night). A security officer, Thakalani James Sadiki, was robbed at gunpoint by three men at Buitekant Street while on duty. His Ericsson cellular phone and his Norinco 9mm Parabellum pistol, serial number 46012527, were taken. Sadiki could not identify the assailants, but he identified his firearm later when it was in the investigating officer’s possession.

On 29 November 2001, police conducted an operation at Mamelodi hostel. Two police inspectors (Moller and Colyn) testified that they entered the appellant’s cubicle, saw the appellant with keys, and after moving the bed recovered a bunch of keys. A key opened a locked steel cupboard in the appellant’s cubicle, where the police found the Norinco 9mm pistol with serial number 46012527 (Sadiki’s pistol) and ammunition in a magazine. The evidence that the firearm was found in the appellant’s locked cupboard, and that he held the keys, was accepted; neither inspector was discredited in cross-examination.

The trial court acquitted on counts 4 and 5 (possession of the firearm with obliterated serial number and ammunition on 23 November 2001), and the State conceded at trial that there was no evidence to show unlawfulness of such possession by the appellant at the Groenkloof scene. The appeal focused instead on whether the remaining convictions were sustainable on the evidence and whether the trial court had drawn impermissible inferences, particularly regarding the appellant’s knowledge of a firearm at Groenkloof.

3. Legal Issues

The central legal questions concerned the correctness of attributing criminal liability to the appellant on the basis of common purpose, and the extent to which inferences could be drawn from the proved facts and the appellant’s election not to testify.

In relation to counts 1 and 2 (murder and attempted murder), the key issue was whether the evidence established, beyond reasonable doubt, that the appellant had the necessary mens rea through common purpose principles, including whether it was permissible to infer that he knew a firearm was present and that lethal violence was foreseen and embraced by the common design.

In relation to count 3 (housebreaking with intent to rob and robbery with aggravating circumstances), the issue was whether the evidence supported the conviction as charged, or whether only a lesser competent verdict was supported on the evidence, given the limited property taken and the uncertainties about the robbery element as formulated in the indictment.

In relation to count 8 (robbery with aggravating circumstances involving Sadiki), the issue was whether the appellant’s possession of Sadiki’s firearm six days later justified the inference that he was involved in the robbery, notwithstanding the complainant’s inability to identify the attackers.

These questions were principally about the application of legal principles to facts, including inferential reasoning and the drawing of conclusions from circumstantial evidence, and whether the trial court’s factual findings were vitiated by a material misdirection sufficient to justify appellate interference. The appeal also raised sentence-related issues, including whether minimum sentence provisions were adequately addressed and whether concurrency of sentences was appropriate.

4. Court’s Reasoning

The Full Court approached the appeal with the established appellate restraint applicable to factual findings, recognising that an appellate court is slow to interfere with trial court findings absent a material misdirection. The judgment expressly located this approach within the line of authority beginning with R v Dhlumayo and Another 1948 (2) SA 677 (A) and subsequent decisions such as S v Francis 1991 (1) SACR 198 (A). The court nevertheless held that, where a material misdirection is shown, interference is permissible even on issues that would ordinarily be treated as factual evaluations.

A central component of the court’s reasoning was that the trial court’s conviction on murder and attempted murder rested materially on an inference that, because the appellant was said to have acted as a “guard” outside, the only inference was that he must have known that a firearm was present at the scene. The Full Court accepted that parts of the trial court’s reconstruction of Esau’s evidence were arguably supportable to a limited extent—particularly the sequence that the appellant heard a shot and then called out after seeing police. However, it found that the crucial further inference—that the appellant must have known there was a firearm “on the scene” and, by implication, that this was embraced by the common purpose—was not supported by evidence.

The Full Court reasoned that, even if the appellant heard a shot while outside, it did not follow, as the only reasonable inference, that he knew in advance of a firearm’s presence or who fired it. The court considered that the shot could have come from various sources and, absent evidence of prior knowledge or agreement regarding armament, the inference drawn by the trial court was not warranted. On this basis, the trial court’s reliance on S v Malinga and Others 1963 (1) SA 692 (A) was treated as misplaced. The Full Court explained that Malinga’s reasoning depended on proved knowledge that one participant was armed with a revolver obtained and loaded for the occasion, and on foresight of its potential use during resistance or escape; the present case lacked evidence that the appellant knew about a firearm, which was the “main thrust” behind Holmes JA’s conclusion in Malinga. Consequently, the Full Court held that the case could not properly be treated as analogous to Malinga on the issue of imputing intention to kill by common purpose.

The Full Court then located the correct approach to common purpose liability, in the absence of proof of a prior agreement, within S v Mgedezi and Others 1989 (1) SA 687 (A), which sets out prerequisites for liability on a common purpose basis where an accused did not causally contribute to the killing. Applying that framework, the court held that the requirements necessary to sustain convictions on counts 1 and 2 were not present on the evidence, particularly in the absence of proof that the appellant foresaw the possibility of lethal violence and associated himself with it with the necessary mens rea. The appellant was therefore entitled to an acquittal on counts 1 and 2.

Turning to count 3, the Full Court examined the trial court’s reasoning regarding the robbery of the Groenkloof family and the limited items removed. While the Full Court expressed doubt about the trial court’s speculation that the theft of small items was interrupted by the police (given the evidence that the intruders fled upon being told the child had been shot), it nonetheless held that the evidence, especially Esau’s account of the appellant’s narrative, supported the conclusion that the appellant shared a common purpose at least to break in and steal from the property.

In reaching that conclusion, the court relied in part on the principle that an accused’s silence may have evidential consequences where there is evidence calling for an answer. The Full Court cited S v Boesak 2001 (1) SA 912 (CC) for the proposition that, although an accused is not obliged to testify, a court may conclude that evidence is sufficient to prove guilt in the absence of an explanation when the accused remains silent in the face of evidence calling for an answer. On the Full Court’s reasoning, the appellant’s failure to testify meant that the prima facie case linking him to the enterprise of breaking in and stealing was not rebutted.

However, the Full Court held that the appropriate conviction on count 3 was not robbery with aggravating circumstances as charged. Instead, it concluded that a conviction on the lesser competent verdict of housebreaking with intent to steal and theft was competent, relying on sections 260 and 262(1) of the Criminal Procedure Act 51 of 1977. The court therefore replaced the conviction on count 3 with that lesser verdict.

Regarding counts 6 and 7 (unlawful possession of the Norinco pistol with serial number 46012527 and ammunition on 29 November 2001), the Full Court considered the evidence of the police inspectors that the firearm was found hidden in the appellant’s locked cupboard and that he had control of the keys. Given the credibility findings in favour of the inspectors and the absence of rebuttal evidence by the appellant, the court held that the convictions were properly sustained.

As to count 8 (the robbery of Sadiki), the Full Court acknowledged that Sadiki could not identify his assailants, but held that the trial court’s inference of the appellant’s involvement—drawn from the appellant’s possession of the robbed firearm within days—was not shown to be vitiated by a material misdirection. Applying the restraint principles from Dhlumayo and Francis, and again noting the reinforcing effect of the appellant’s silence as described in Boesak, the Full Court found no basis to interfere with the conviction on count 8.

On sentence, the Full Court dealt with an argument based on the alleged failure to address minimum sentence provisions in terms of the Criminal Law Amendment Act 105 of 1997, referring to S v Ndlovu 2003 (1) SACR 331 (SCA) and noting that judicial opinion is divided on whether a represented accused must be specifically alerted where minimum sentences are not in the indictment, with reference to S v Xaba 2011 (2) SACR 1 (KZP). The court considered that, given its conclusions on conviction, the minimum sentence regime was not applied to the remaining counts in any event.

The court then adjusted sentence to reflect the substituted conviction on count 3. The original 18-year sentence on count 3 was reduced to eight years’ imprisonment. The sentences on counts 6, 7 and 8 (three years, one year, and eighteen years respectively) were left intact, but the Full Court exercised its discretion to order that counts 6, 7 and 8 be served concurrently, on the basis that they bore on the same underlying incident. Finally, the Full Court directed that the new sentences be antedated to 21 November 2002.

5. Outcome and Relief

The Full Court upheld the appeal against conviction on counts 1 and 2, and set those convictions aside. The appeal against conviction on count 3 succeeded in part: the conviction was set aside and replaced with a conviction of housebreaking with intent to steal and theft. The appeal against convictions on counts 6, 7 and 8 was dismissed, and those convictions were confirmed.

The appeal against sentence succeeded in part. The Full Court replaced the sentence on count 3 with eight years’ imprisonment, confirmed the sentences on counts 6, 7 and 8 as three years, one year, and eighteen years imprisonment respectively, and ordered that the sentences on counts 6, 7 and 8 run concurrently. The court antedated the sentences imposed to 21 November 2002. The judgment did not make a costs order (consistent with criminal proceedings of this nature).

Cases Cited

R v Dhlumayo and Another 1948 (2) SA 677 (A); S v Francis 1991 (1) SACR 198 (A); S v Malinga and Others 1963 (1) SA 692 (A); S v Mgedezi and Others 1989 (1) SA 687 (A); S v Safatsa and Others 1988 (1) SA 868 (A); S v Boesak 2001 (1) SA 912 (CC); S v Ndlovu 2003 (1) SACR 331 (SCA); S v Xaba 2011 (2) SACR 1 (KZP).

Legislation Cited

Criminal Procedure Act 51 of 1977 (including sections 1, 220, 260 and 262(1)); Arms and Ammunition Act 75 of 1969 (including sections 2 and 36); Criminal Law Amendment Act 105 of 1997.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Full Court held that the trial court materially misdirected itself in convicting the appellant of murder and attempted murder on the basis of common purpose by inferring, without evidential foundation, that the appellant must have known a firearm was present at the Groenkloof scene and by treating the matter as analogous to authority requiring such knowledge for imputing intention. Applying the requirements for common purpose liability articulated in Mgedezi, the court found that the prerequisites for liability on counts 1 and 2 were not established beyond reasonable doubt.

The court held that the evidence, particularly the appellant’s account as relayed by Esau and the absence of rebuttal evidence from the appellant, supported liability for participation in a criminal enterprise at Groenkloof at least to the extent of housebreaking with intent to steal and theft, which was a competent verdict under the Criminal Procedure Act. The court further held that the appellant’s possession of the stolen firearm shortly after the Sadiki robbery justified the inference of participation in that robbery, and that the convictions for unlawful possession of that firearm and ammunition were properly sustained.

LEGAL PRINCIPLES

A court of appeal will be slow to interfere with findings of fact by the trial court, and will do so only where there is a material misdirection or similar justification warranting appellate intervention. This approach was applied to determine whether the trial court’s inferences and credibility-based conclusions could stand.

Inferences drawn to establish knowledge, foresight, and mens rea for purposes of common purpose must be supported by evidence and must represent reasonable conclusions from proved facts. A conviction cannot be sustained where the critical inferential step—such as prior knowledge that a co-perpetrator was armed—is not founded on evidence, particularly where that knowledge is the premise for imputing intention to kill under common purpose reasoning.

Where there is no proof of a prior agreement and an accused did not causally contribute to a killing, liability under common purpose requires satisfaction of the prerequisites articulated in S v Mgedezi and Others 1989 (1) SA 687 (A), including presence at the scene, awareness of the violence, intention to make common cause, some act of association, and the requisite mens rea (including foresight of death and recklessness as to whether it ensues).

Although an accused person has no obligation to testify, a court may draw adverse evidential consequences where there is evidence calling for an answer and the accused remains silent. In such circumstances, the absence of an explanation may permit the conclusion that the State’s evidence is sufficient to prove guilt beyond reasonable doubt, as applied in the evaluation of the appellant’s liability on the remaining counts.

Where the evidence does not support a conviction as charged but does support a lesser competent verdict, the court may substitute that conviction if the Criminal Procedure Act provides competence to do so, as in the substitution of the conviction on count 3 to housebreaking with intent to steal and theft under sections 260 and 262(1).

Sentencing remains primarily within the discretion of the trial court, but an appellate court may interfere where the conviction basis changes or where a proper exercise of discretion requires adjustment. Where multiple sentences relate to substantially the same underlying conduct or incident, a court may order concurrency to reflect proportionality and fairness in the total effective sentence.

Masemola v S (A631/2015) [2016] ZAGPPHC 319 (13 May 2016)