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[2015] ZAGPPHC 482
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Mogawane v S (A831/14) [2015] ZAGPPHC 482 (1 July 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
1/7/15
CASE NO: A831/14
In
the matter between:
KAIZER
MALEU
MOGAWANE
Appellant
and
THE
STATE
Respondent
JUDGMENT
Baqwa
J
[1]
This is an appeal against the conviction of the appellant.
He
was charged
in the
High Court
of
South Africa,
Gauteng
Division
(Functioning
as Limpopo
Division,
Polokwane)
with
the
crimes
of
murder
read with the provisions of
Section 51 of Act 105 of 1997, attempted murder and arson.
[2]
The appellant pleaded not guilty to all the counts on 9 June 2011 but
was subsequently convicted and sentenced. He was sentenced
as
follows:
1.
Murder: 18 years imprisonment
2. Assault GBH: 3
years imprisonment
3. Arson: 5 years
imprisonment
It
was further ordered that counts 2 and 3 run concurrently. The
effective term of imprisonment was therefore 23 years imprisonment
[3]
On 4 November 2013 the appellant was granted leave by the Supreme
Court of Appeal to appeal against his conviction only, to
the full
court of this division.
[4]
The background to this case was briefly as follows: On 1
December 2009 a group of persons killed the deceased in count
1, who
was the son of the complainant in count 2, by throwing stones at him.
The deceased died on the scene and the cause
of death as
recorded in the post-mortem report is "Blunt force trauma to the
body." A group of persons, amongst
whom was the appellant,
also attended at the house of the complainant in count 2 where a
stone was thrown at the complainant. The
group left and the
complainant and his wife were able to flee. A group of persons
again attended at the house of the complainant
in count 2 when the
house and other structures on the premises were set alight. The State
averred that the appellant and his co
accused acted in
furtherance of a common purpose.
[5]
The State called the evidence of several witnesses but for purposes
of this judgment. I propose to deal only
with the
evidence which was pertinent to each of
the counts regarding which the appellant was
charged.
[6]
Regarding count 1 of murder the appellant was implicated by the
evidence of one Daniel Mmakhudu Moriri who testified that he
was the
brother-in-law of the deceased. He was in Dinotje village on
the day in question when he received a telephone call
from his wife
that prompted him to proceed to the residence of the deceased. He
observed a group of people at or near a local school.
He approached
and concealed himself in a donga which he estimated to be about half
a metre in depth and from that position he witnessed
the killing of
the deceased.
[7]
Moriri testified that the crowd initially wanted to stone the
deceased but that the appellant stopped them. The appellant then
pulled out a knife and stabbed the deceased on the left side of the
neck or the throat below the chin. Moriri testified that the
crowd
thereafter stoned the deceased. It is common cause that the incident
occurred at night and that Moriri observed the events
from a distance
with moonlight as the source of light. Cross examination further
revealed that there were also 1 metre tall aloe
plants in the
vicinity of his point of observation. Moriri testified that he had
last seen the appellant six months before the
incident.
[8]
Regarding matters of identification, caution was sounded in
S v
Mthethwa
1972
(3)
SA 766
(AD)
at 768 A - C as follows:
"Because
of the fallibility of human
observation, evidence of identification is approached by the Courts
with
severe
caution.
It
is not enough for the
identifying
witness
to be honest: the reliability
of his observation must also
be tested.
This
depends
on
various factors,
such
as lighting,
visibility,
and eyesight; the proximity
of the witness; his
opportunity
for
observation, both as to
time
and
situation;
the
extent
of
his
prior
knowledge
of
the
accused;
the mobility of the scene;
corroboration;
suggestibility;
the accused's
face, voice, build, gait,
and
dress; the
result
of
identification
parades, if
any, and,
of
course,
the
evidence
by
or
on
behalf
of
the
accused.
The list
is
not exhaustive.
These
factors,
or
such
of
them
as
are
applicable
in
a
particular case,
are not individually
decisive,
but must
be
weighed one against
the other, in
the
light
of
the
totality
of
the
evidence, and
the
probabilities;
See
cases such
as
R.
V. Masemang
1950 (2)
SA
488
(AO);
R.
V. Dladla
and
Others
1962 (1)
SA
307
(AD) at 310
C;S
v
Mehlape, 1963 (2)
SA
29
(AO)"
[9]
What is of concern about the evidence of Moriri are the following:
First, the trial court did not permit cross-examination
that
was aimed at discrediting the reliability of his evidence relating to
his previous knowledge of the appellant. Secondly, the
source of
light for the purpose of identification was only moonlight. Thirdly,
his evidence that he observed the appellant pulling
out a knife and
stabbing the deceased in the region of the neck is not supported by
the post-mortem report. There is no mention
even of a single stab
wound in that report and as already stated above, the death of the
deceased was caused by blunt force. In
the circumstances, I cannot
but come to the conclusion that the State failed to prove its case
beyond a reasonable doubt on this
count.
[10]
The complainant in count 2 (Mashabela) was struck with a stone whilst
the group of persons, who included the appellant, were
at his
residence to warn him to leave the area. Mashabela testified that he
spoke to the appellant. He further testified that the
appellant
stopped the people from assaulting him and he opined that had it not
been for the appellant's intervention he could have
suffered further
harm. The charge on count 2 was attempted murder even though the
conviction was on the competent verdict of assault
with intent to do
grievous bodily harm. There is no evidence that the appellant
intended to or harmed the complainant on count
2 in any way. If
anything, he was his saviour. He could therefore not be said to
have acted in furtherance of a common purpose
in the commission of
this crime. See
S
v
Thebus 2003
(2) SACR
319
(CC) para 49 where the
Constitutional Court pronounced as follows:
"If the
prosecutor
relies
on
common
purpose,
it
must
prove
beyond
doubt
that each of the
accused had the requisite
mens
rea
concerning
the unlawful outcome
at
the
time
the
offence
was
committed. That
means
that
he
or
she must
have
intended
that
criminal
result
or
must
have
foreseen
the possibility of
the
criminal
result
ensuing
and
nonetheless associated
himself or
herself
reckless
as to
whether the result
was to ensue."
[11]
In the circumstances I find that the court
a quo
misdirected itself in finding that the State had proved its case
with regard to count 2 even in respect of the competent verdict
of
assault with intent to do grievous bodily harm.
[12]
Regarding count 3 of arson the witness Tirelo Mashabela (the grandson
of the complainant in count 2) testified how he overheard
a
conversation at or near the communal tap by some persons including
accused 4, one Skinny and one Komane Mashigo. The conversation
was
about the burning down of houses on that day. Thereafter he went and
warned his grandfather (complainant in count 2) of what
he had heard.
In his testimony he also identified accused 4 and accused 1 as having
been part of the crowd that burnt down his
grandfather's house.
Moriri also testified about the preparations for the burning down of
the house which included the fetching
of petrol by accused 1. He
witnessed the burning of the house while he was still in the donga at
the time. Both these witnesses
do not mention having seen the
appellant at the scene when the house and other structures were set
alight. The State had therefore
also in this instance failed to lay a
sufficient basis for a conviction. The doctrine of common purpose can
equally find no application
with regard to count 3 of arson.
[13]
The court
a
quo
inter
alia
found that "[e]ach one of the accused was
identified and duplicated in what occurred on that day..."
(p
250 of the record) and that on all three counts the accused,
including the appellant, had to be found guilty on the basis of
common purpose.
[14] In my view this was
a further misdirection on the part of the court a quo as that
conclusion is not supported by the evidence
which was presented.
[15]
This is
a fortiori
the case when one considers the law as set
out in the
locus classicus
regarding common purpose:
S
v
Mgedezi
1989 (1) AD
688
B - D where
the following was stated:
"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 and Others
1988 (1) SA 868
(A)
only if certain requisites
are satisfied.
In
the first place,
he must have been present at
the
scene
where
the
violence
was
being
committed.
Secondly,
he
must have 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."
[16] In casu, none of
these prerequisites have been established beyond a reasonable doubt
or at all.
[17]
In the result, I propose that the following order be made:
17.1
The appeal by the appellant against his conviction
on all three
counts is upheld.
17.2
The appellant's conviction on counts
1, 2 and 3 and the sentences
imposed upon him pursuant to such conviction by the court
a quo
are set aside.
_____________________
S.A.
M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
I
agree.
_____________________
P.A.
MEYER
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
I
agree and it is so ordered.
_____________________
C.
PRETORIUS
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
Heard
o
n: 19 June 2015
Delivered
o
n:
For
the Appellant:
dv. Legodi
Instructed
b
y:Legal Aid A
For
the
Defendants:
Adv. Vorster
Instructed
b
y:The State Attorney