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
>>
2016
>>
[2016] ZAGPPHC 731
|
|
Mabena v S (A81/2016) [2016] ZAGPPHC 731 (18 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT,
PRETORIA
CASE
NO: A81/2016
DATE:
18 AUGUST 2016
In
the matter between:
BONGANI
JOSEPH
MABENA
..............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
J
W LOUW. J
[1]
The appellant and his co-accused, Edward Marula Kgareng, were
convicted of the following charges by C J Claassen J on the basis
of
common purpose:
•
Count
l: Robbery with aggravating circumstances.
•
Count
2: Murder.
•
Count
3: Possession of two unlicensed firearms.
•
Count
4: Possession of unlicensed ammunition.
[2]
The appellant and Kgareng were each sentenced as follows:
•
Count
1: Fifteen years imprisonment.
•
Count
2: Life imprisonment
•
Count
3: Three years imprisonment.
•
Count
4: One year imprisonment.
The
court ordered that the sentences on counts 3 and 4 run concurrently
with the sentence on count 1.
[3]
The appellant was granted leave to appeal against his conviction and
sentence by Ledwaba DJP, Claassen J having in the meantime
retired.
In regard to the appellant's conviction, the only issue on appeal is
whether the court a quo correctly found that the
appellant and
Kgareng had acted in common purpose. The murder victim was a police
officer, Bapelang Johannes Sedimo, who was shot
while on duty.
[4]
The State called an independent eye-witness, Mr. Enos Boitemelo
Sehwapa, who was present when the incident occurred at around
04h00
on New Year's Day 2005. He testified that he had been drinking at a
tavern in a Thabazimbi township since the previous evening.
He and
many others stood drinking in the street outside the tavern. It was
still dark. He saw a police vehicle approaching and
stop in front of
the tavern. He wanted to go and show the police officer that someone
had injured him in a fight. Before he could
reach the police vehicle,
the police officer got out of the vehicle and spoke to a young man,
asking him why he was drinking in
the street. The young man then
grabbed the policeman by his clothes in front of his chest. Sehwapa
then heard the sound of a firearm
and saw the police officer and the
young man who had grabbed him fall to the ground. When they were on
the ground, he heard two
further gun shots. Sehwapa then saw another
young man approach the policeman and the young man who were lying on
the ground. He
saw the other young man search the police officer and
concluded that he had removed something from the police officer while
he
was on the ground. The young man who was lying on the ground then
got up and the two young men both ran away.
[5]
Sehwapa was not able to identify either of the two young men. He
could also not say which of the two had fired the shots, but
presumed
("vermoed") that it was the one who had grabbed the police
officer by his clothes.
[6]
It was common cause that Kgareng was arrested at the appellant's
parental home the following night where he was sleeping with
his
girlfriend. The arresting officer, Capt. Charles Cornelius Smith,
testified that a Z88 firearm with fifteen rounds of ammunition
was
found under his pillow. The serial number of the firearm had been
filed off, but the forensic evidence confirmed that the firearm
was
the official firearm which had been issued to officer Sedimo. Capt.
Smith testified that Kgareng informed the police that the
appellant
might be in hospital as he had been injured. After searching various
hospitals, the appellant was found at the Ga-Rankua
hospital where he
was booked in under a false name. His left arm was injured. He was
arrested and when asked about the second firearm,
he told the police
that he had given it to Kgareng. Kgareng then accompanied the police
to his parental home, where the firearm,
a 7.65 mm pistol, was found
hidden behind some books. When asked about ammunition for this
firearm, Kgareng indicated that it was
at the appellant's parental
home where a bottle containing ammunition was then found. The serial
number of this firearm had also
been removed. Forensic evidence
however confirmed that the bullet which had been removed from the
body of the deceased had been
fired from this firearm.
[7]
The appellant and Kgareng both testified and both placed themselves
on the scene of the murder and the armed robbery. They both
denied
killing the deceased and robbing him of his firearm, each blaming the
other.
[8]
The evidence of the appellant was that he and Kgareng and other
people were standing in the street outside the tavern when the
police
vehicle arrived and stopped where they were standing. There was a
female police officer with officer Sedimo in the vehicle.
Officer
Sedimo told Kgareng not to drink liquor in the street. He then drove
away in the vehicle. The appellant then went inside
the tavern and
bought more liquor. The police vehicle returned after a few minutes,
at which time a fight had started between some
of the revellers. This
time officer Sedimo was alone in the vehicle. After speaking to the
group of people involved in the fighting,
Sedimo drove the vehicle to
where the appellant and Kgareng were standing and said to Kgareng
that he had told him not to drink
in the street. Kgareng then asked
Sedimo whether he was the only one amongst everyone else who was
drinking in the street and told
Sedimo to leave him alone and to
concentrate on his work. Officer Sedimo then threatened to lock
Kgareng up in the police cells
because he wouldn't listen. He opened
the back of the police vehicle and tried to catch Kgareng. Kgareng
retreated and took out
a firearm. Sedimo then took out his firearm
and tried to hide behind the appellant. The appellant tried to move
backwards. It was
then that Kgareng fired a shot. The appellant
pushed Sedimo and they both fell to the ground. Kgareng then shot
Sedimo while he
was lying on the ground. The appellant couldn't say
how many shots were fired. He stood up, but Sedimo was not able to.
Kgareng
then went to Sedimo and took his firearm. He then left the
scene and the appellant followed him. When the appellant caught up
with
him, he realised that his hand was bleeding. Kgareng gave him
the firearm that he had used to shoot officer Sedimo and told him
to
hold it. Kgareng then realised that the appellant had been injured
and he took the firearm back. The appellant asked Kgareng
whether he
could see that he had injured him. Kgareng's reply was that the
appellant was a man and that he should not be afraid
of pain.
[9]
The appellant further testified that they did not have enough money
left to get to Ellisras where they had originally planned
on going.
Kgareng had only R50, which was not even enough to get back to
Pretoria from where they had come. Kgareng suggested that
they go and
wake his brother-in-law. There Kgareng asked the brother-in-law for a
plastic bag and money in the amount of R40. The
brother-in-law gave
them a plastic bag but only had R20 to give to Kgareng. Kgareng put
the two firearms inside the plastic bag.
The appellant took off his
skipper which covered his injured hand and his trousers which had
blood on it because Kgareng told him
he would be arrested if he did
not change his trousers. Kgareng provided him with Bermuda shorts
which he kept at his brother-in-law's
place. They then proceeded to
hitch-hike in the direction of Pretoria. At that stage, the appellant
was holding the plastic bag
with the two firearms and the clothing. A
truck gave them a lift, and the appellant gave the plastic bag with
its contents back
to Kgareng once they were seated inside the truck.
They alighted from the truck at Brits from where Kgareng went home
and the appellant
somehow managed to get himself to the Ga-Rankuwa
hospital where he was arrested the next morning.
[10]
The evidence of Kgareng was that he and the appellant, with whom he
had been friends for ten years, were travelling together
to Ellisras.
They arrived at Thabazimbi at about 17h00 on 31 December 2005. They
then went to the house of a person whom he knew
where they drank
beer. At about 20h00, he and the appellant went to the tavern in
question where they remained and drank liquor
until the shooting
incident took place. He denied that he shot officer Sedimo and said
that Sedimo was shot by the appellant. He
did not see clearly how it
all happened, but saw that Sedimo and the appellant were pulling each
other and that thereafter a gun
shot went off. People ran in
different directions and the appellant and Sedimo were lying on the
ground. He saw the appellant standing
up. He then walked across the
street and found that the appellant was busy searching Sedimo and saw
that there was blood on Sedimo's
shirt. He then asked the appellant
whether he realised that he had kilied the policeman. The appellant
then took one firearm and
placed it in his pocket and cocked the
other firearm and said that the people of Thabazimbi were fools and
that he was not going
to buy their story. He told the appellant that
he would be putting him, Kgareng, in trouble because they had gone
there together.
The appellant said that he was a clever person and
knew his story. He hadn't been aware that the appellant was in
possession of
a firearm. When the shooting took place, he wasn't sure
whether it was the policeman who was shooting the appellant or
whether
the appellant was shooting the policeman. He said that when
this happened, he was inside the yard of the tavern and the appellant
was in the street. The appellant said he should not ask him questions
as if he was a police officer. They had an argument and he
walked
away. The appellant then came running to him and they walked further
together.
[11]
While they were walking, the appellant showed him his hand and said
that he had shot himself and that that would not change
what had
happened because the police officer also wanted to shoot him. They
then proceeded to the place of Oupa, being one Ismael
Mokoena, who
must be the brother-in-law to whom the appellant referred. He wanted
to tell Mokoena what had happened but was scared,
thinking that the
appellant would shoot him as well. He ended up saying to Mokoena that
there had been a fight and that he just
wanted to come and greet him.
He and the appellant then left Mokoena's place, his intention being
to go back home in Winterveldt.
When he reached home, he knocked but
there was no response. He then proceeded to the appellant's place
together with his girlfriend.
The police arrived during the night and
kicked the door open and arrested him. He denied having any weapon in
his possession. He
had previously slept in the appellant's room,
especially when they had been out together and had returned late at
night.
[12]
He did not know where the police found the firearm, but he saw the
firearm in their possession when he was arrested. He told
the police
that the appellant had left during the day and that he was going to
his girlfriend in Soshanguve. He was asked by his
legal
representative during his evidence in chief what the appellant had
given him before the appellant told him that he was going
to his
girlfriend's place. His answer was that the appellant had left the
firearm together with his bloodstained clothes with him.
This
evidence, of course, contradicts his earlier evidence that he did not
have any firearm in his possession and confirms the
appellant's
evidence in this regard.
[13]
Kgareng accompanied the police to the Ga-Rankua hospital. There
constable Chauke approached him and said that the appellant
had told
them that he had left the firearm with Kgareng. This was a reference
to the murder weapon. Kgareng admitted that this
was true and they
then proceeded to his parental home where he showed the police where
the firearm was. He was confronted by the
poiice about the fact that
there were no bullets in the firearm. He told the police that he had
seen builets in the appellant's
room. He testified that he had seen
the bullets inside an air freshener container at the time when he was
there with his girlfriend.
[14]
He was asked in cross-examination about the Z88 firearm. He said that
the appellant had taken the Z88 with him when he said
that he was
going to his girlfriend in Soshanguve. This evidence cannot be be
true in light of the fact that the Z88 was found
by the police under
the pillow of the bed on which he was sleeping.
[15]
The court a quo found that it did not really matter whether the
appellant shot officer Sedimo and Kgareng then removed his
Z88
firearm, or vice versa. The court found that that was exactly the
evidence testified to by Sehwapa and that that evidence in
effect
makes both accused guilty of murdering the deceased as the one who
did not fire the shot associated himself with the crime
by removing
the policeman's firearm and running away together with the other who
had fired the shot. The court found that, as such,
the evidence
proved beyond any doubt a common purpose amongst the two perpetrators
of killing the deceased and robbing him of his
firearm.
[16]
In S v Mgedezi and Others/ the findings in the judgment of Botha JA
are correctly summarized in the headnote as follows:
"In
the absence of proof of a prior agreement, an accused who was not
shown to have contributed causally to the killing or
wounding of the
victims
(in casu,
group violence on a
number of victims) can be held liable for those events on the basis
of the decision in S
v Safatsa C and 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
1
1989(1)687 (AD)
been aware
of the assault on the victims. 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, 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.
Inherent
in the concept of imputing to an accused the act of another on the
basis of common purpose is the indispensable notion
of an acting in
concert. From the point of view of the accused, the common purpose
must be one that he shares consciously with
the other person. A
'common' purpose which is merely coincidentally and independently the
same in the case of the perpetrator of
the deed and the accused is
not sufficient to render the latter liable for the act of the
former."
[17]
In my respectful view, the trial court misdirected itself in finding
common purpose between the appellant and Kgareng. The
independent
witness Sehwapa was not able to say which of the two men that he saw
did the shooting. His evidence was that he presumed
that it was the
person who had grabbed the deceased by his clothes. His evidence was
not, as was found by the court a quo, that
one person shot the
policeman and the other removed his firearm. If that had been his
evidence, a finding of common purpose would
have been in order. The
appellant's version, however, was that the deceased was shot by
Kgareng and that it was also Kgareng who
robbed the deceased of his
firearm. The appellant's version of the incident, to which I have
referred in more detail above, is
reasonably possibly true and cannot
be rejected despite the evidence of Sehwapa or of Kgareng. On the
appellant's version, he did
not make common purpose with the actions
of Kgareng, neither did he manifest that he shared a common purpose
with Kgareng of murdering
and robbing the deceased by himself
performing some act of association with the conduct of Kgareng. He
also did not intend the
deceased to be killed, and did not foresee
the possibility of him being killed or perform his own act of
association with recklessness
as to whether or not death was to
ensue.
[18]
For the same reasons, common purpose cannot be found in respect of
the robbing of the deceased's firearm or the murder weapon.
It
follows that there was also no common purpose in respect of the
possession of the two firearms and ammunition.
[19]
It was
submitted on behalf of the State that common purpose can be found if
regard is had to the subsequent conduct of the appellant
and Kgareng
to which I have referred above. In my view, there is no merit in this
argument. To accept the argument, would ignore
more than one of the
prerequisites for a finding of common purpose as laid down in
Mgedezi.
[20]
It was
submitted in the alternative on behalf of the State that in the event
of the appeal against the conviction of the appellant
on the basis of
common purpose being upheld, he should be convicted of being an
accessory after the fact. There is also no merit
in this argument. An
accessory after the fact is someone who unlawfully and intentionally,
after the completion of a crime, associates
himself or herself with
the commission of the crime by helping the perpetrator or accomplice
to evade justice.
[1]
The appellant did nothing to help Kgareng to evade justice. Kgareng
was arrested by the police as a result of information which
they
received and while the appellant was in hospital.
[21]
In the
result, I would uphold the appeal and make the following order:
[a]
The conviction of the appellant by the court a quo is set aside
[b]The order of
the court a quo in respect of the appellant is replaced with the
following order:
"Accused
no. 2 is found not guilty and is discharged"
J
W LOUW
JUDGE
OF THE HIGH COURT
I
agree
H
J DE VOS
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
C
P RABIE
JUDGE
OF THE HIGH COURT
Attorney
for appellant: Ms M B Moioi Counsel
For
respondent: Adv M J van Vuuren
[1]
See S v Morgan and Others
1993 (2) SACR 134
(A) at 173j —
174e.