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[2015] ZAGPPHC 74
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Welgemoed v S (A843/2011) [2015] ZAGPPHC 74 (20 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA).
Case: A843/2011
Date: 20 February
2015
In the matter
between:
Carl Louis
Welgemoed
............................................................................................................
Appellant
and
The
State
...............................................................................................................................
Respondent
JUDGMENT
Maumela
J
:
1.
This appeal comes before us with the leave of the trial court sitting
in Polokwane. In the court a
quo
the
appellant was accused 1 one Eduard Pretorius was accused 2. Leave was
granted to the appellant in respect of his convictions
only.
2.
Before the court a
quo
,
the accused faced two charges, namely murder, read with the
provisions of
section 51
(1) of the
Criminal Law Amendment Act 105 of
1997
and robbery with aggravating circumstances, as defined in
section 1 of the
Criminal Procedure Act 1977
.
3. Count I related
to the killing of one C W van der Walt in Polokwane on 15 August 2003
and count 2 to the robbery of a red BMW
motor vehicle, a video
recorder, a cellular telephone and certain other personal effects of
the said Van der Walt at the same time
and place.
4. The accused both
pleaded not guilty but were convicted on both counts. The appellant
was sentenced to five years’ imprisonment
on each of the two
counts.
5. Briefly stated
the facts, which were mainly undisputed, were as follows:
5.1 On the day of
the incident the two accused were socializing at different places in
Polokwane. After watching a video they went
to a filling station to
buy cigarettes, where they solicited a lift from the deceased. Along
the way they stopped at the Castle
Pub, where they befriended the
deceased over a few drinks. The latter invited them for more drinks
at his home.
5.2 While drinking,
the appellant excused himself to visit the bathroom. Upon his return
he found accused 2 hitting the deceased
repeatedly with a big (size
24) spanner on the head. His efforts to stop the assault were met
with threats of violence against
him from accused 2. He states that
he kept quiet for his own safety. The deceased seemed to have lost
consciousness. Accused 2
ordered him to assist in loading belongings
of the deceased into the latter’s car. He obliged out of fear
for his own safety.
5.3 Before driving
off he noticed that the deceased was still making faint movements.
Accused 2 covered the deceased’s head
with a blanket and dealt
him several more blows with the same heavy spanner.
5.4 The two then
drove to Mr. Jardine’s place where the appellant was renting a
room. There the appellant remained seated
in the car while accused 2
threw the loot over the wall into Jardine’s premises. He later
helped accused 2 to store the stolen
goods in a back room at that
house.
6. The difference
between the appellant’s involvement in count 1 and 2 is that in
the case of the latter he willingly took
part in the proceedings. He
helped to carry away and later store the loot at Jardine’s
place. Despite his claim that he acted
under duress, fearing for his
life all the time, there is a clear difference between the two cases:
In the case of the murder he
chanced upon the crime in the process of
it being committed. In view of the nature of the relationship between
the two of them
and the threat by accused 2 it is reasonably possible
that in the heat of the moment he could not find a way to interfere
and stop
the assault, or even of disassociating himself from it. The
robbery was something different: when he helped to carry away and
later
store the loot, he was well aware that a serious assault had
been perpetrated on the victim, who was in no state to offer any
resistance.
His willing participation in the robbery went
considerably further on the next day when he assisted his co-accused
to enjoy the
fruits of their crime, as will appear below.
7. The next day
accused 2 sent the appellant to town alone to sell some of the stolen
goods and to purchase airtime, cigarettes
and drinks. The appellant
did everything he was told to do and did not use the opportunity to
blow the whistle on accused 2.
8. The appellant and
accused 2 told the appellant’s landlady that they had beaten up
a gay male sex pest and left him at the
roadside. She later
confronted the appellant with a report that she had seen in the local
press about the murder of a man in his
home. The appellant broke
down, wept and told her the full story. She reported the incident to
the police, which eventually led
to the trial of the two accused.
9. At their trial
the two accused explained that they had met the deceased at the
drinking place where he made unwelcome sexual
advances to the
appellant. Because of his intense dislike of homosexual people,
accused 2 eventually attacked the deceased, even
though the advances
were not directed at him.
10.
Appellant challenges his conviction on both counts. He denied any
participation in the murder: upon his return from the bathroom
he
found accused 2 busy assaulting the deceased and his attempt to
intervene was met with a threat against his own life. That same
threat left him with no choice but to participate in the theft of the
deceased’s property. He denied having associated himself
in any
way with any of the actions of accused 2. Consequently, he argues
that the court a
quo
erred
in convicting him.
11.
Murder is defined as the unlawful and intentional causing of the
death of another human being
1
.
It is trite that in criminal cases, the burden is upon the state to
prove every single element of the crime beyond reasonable
doubt. In
that regard the Supreme Court of Appeal in Prinsloo v S
2
enunciated the law as follows:
“
It
is trite that the State bears the onus to prove the guilt of the
appellant beyond reasonable doubt and that there is no duty
on the
appellant to convince the court of the truthfulness of any
explanation which he gives. If his explanation is found to be
reasonably possibly true, the court will have no reason to reject it.
See also S v Mbuli
3
,
and S v V
4
.
However, this does not require proof beyond any shadow of doubt by
the state. See S v Phallo
5
.
The same view is expressed by Slomowitz AJ in S v Kubeka
6
.”
12. The intention to
kill the deceased is one of the elements that the state needed to
prove against the appellant beyond a reasonable
doubt. It is
undisputed that the appellant did not actively participate in the
attack on the deceased but only found accused 2
already attacking the
deceased when he returned from the bathroom. Even at the second stage
of the assault on the deceased when
they were leaving the house,
there is on the evidence no indication that the appellant joined in
the attack or that he encouraged
or associated himself with it. The
enquiry whether he did so is necessary in order to establish whether
he had a common purpose
with accused 2 in what the latter was doing.
13.
In S v Shaik
7
the court stated:
“
Our
law provides that where two or more people, having a common purpose
to commit a crime, act together in order to achieve that
purpose, the
conduct of each of them in the execution of that purpose is imputed
to the others.”
Before a conviction
of murder could be based on the doctrine of common purpose, it was
incumbent upon the State to prove that the
appellant had actively
associated himself with that purpose and acted in furtherance
thereof.
14.
In the case of S v Mgedezi
8
,
the court set the following five requirements for a person who did
not causally contribute to the killing to be found liable:
14.1 He must have
been present at the scene where the crime was being committed.
14.2 He must have
been aware of the assault on the victim.
14.3 He must have
intended to make common cause with those committing the assault
14.4 He must have
manifested his sharing of a common purpose by himself performing some
act of association with the conduct of the
others, and
14.5 He must have
intended to kill the victim or to contribute to his death.
15. The question for
decision is whether on the evidence set out above it can be found
that the State proved beyond reasonable doubt
that the appellant in
any way participated in the attack on the deceased and whether he had
the requisite intention to kill him.
From the proven facts no
participation nor the intention to kill can be inferred. That being
the case it is clear that the appellant
should not have been
convicted of murder. I may mention that the allegation by the
appellant that he did not interfere with the
attack on the deceased
because of his fear of accused 2, may seem suspicious. However, there
is nothing on record to contradict
his evidence. It also appears from
the presentence report (even though it only became available during
sentencing proceedings)
that the appellant is an extremely meek
character who is easily dominated by others.
16. After storing
the loot at Mr. Jardine’s place as set out in paragraph 5.4
above, the appellant and accused 2 took a joy
ride in the deceased’s
car, eventually overturning and abandoning it.
17. The conviction
on count 2 remains to be considered. The appellant blames his
participation in the robbery on accused 2, but
two aspects about his
subsequent conduct warrant further consideration. Firstly accused 2
sent the appellant to town the next day
to sell some of the stolen
goods in order to buy airtime, liquor and cigarettes. He went alone
to sell the deceased’s cell
phone and brought back R100-00 to
accused number 2. If he did not associate himself with what accused 2
had done, he could and
should have reported the incident to the
police. If he had been intimidated by the latter’s threats to
the extent that he
said that he was, he could have asked the police
for protection.
18. Secondly, he
could have gone to the police after the departure of accused 2 to
Rustenburg. Despite the warning that accused
2 allegedly gestured to
him upon his departure, he could likewise have reported to and sought
the protection of the police if he
really feared for his safety.
19. In short, his
conduct in assisting accused 2 to remove and later dispose of the
loot clearly demonstrated his common
19.
In short, his conduct in assisting accused 2 to remove and later
dispose of the loot clearly demonstrated his common purpose
with
accused 2 in committing the robbery. His conduct on the scene in not
taking part in the assault and in fact attempting to
dissuade accused
2 from continuing with his assault on the deceased sufficiently shows
that he actively disassociated himself from
the criminal conduct of
accused 2. It was not argued by the State before us that his conduct
in keeping quiet and in fact lying
to his landlady about the murder
was sufficient to make him an accessory after the fact to the charge
of murder and nor did the
court a
quo
make
such a finding. The fact that this court may not actually believe the
version of the appellant is not sufficient reason for
rejecting his
version. The fact that it may reasonably possibly be true means that
he is entitled to an acquittal on count 1.
20. I propose the
following order:
1. The appeal in
respect of count I is upheld. The conviction on the charge of Murder
is set aside.
2. The appeal in
respect of count 2 on a charge of Robbery with Aggravating
Circumstances is dismissed.
T. A. Maumela.
Judge of the High
Court.
I agree.
N. Janse van
Nieuwenhuizen
Judge of the High
Court.
I agree and it is so
ordered.
F.G.Preller
Judge of the High
Court
1
See
Criminal Law, Fifth edition, C.R. Snyman, at page 447.
2
(534/13)
[2014] ZASCA 96
(15 July 2014) paragraph [18], not reported.
3
2003
(1) SACR 97
(SAC), at 110 D - E.
4
2000
(1) SACR 453
(SCA), at page 455 B.
5
1999
(2) SACR 558
(SCA), at paragraph 10.
6
1982(1)
SA 534 (W)at 537D.
7
1983
(4) SA 57
, at page 65 A.
8
1989
(1) SA 687
A, at page 705 i to 706 c