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[2007] ZASCA 171
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S v Whitehead and Others (197/07) [2007] ZASCA 171; [2007] SCA 171 (RSA); [2008] 2 All SA 257 (SCA) ; 2008 (1) SACR 431 (SCA) (30 November 2007)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number :
197/07
In
the matter between :
ALEXANDER
GEORGE WHITEHEAD ................................ FIRST APPELLANT
AREND
CHRISTIAAN DE WAAL ................................ SECOND APPELLANT
GEHARDUS
JOHANNES TALJAARD ................................ THIRD APPELLANT
WILLEM
JACOBUS PETRUS JACOBS ................................ FOURTH
APPELLANT
HANS
JACOB WESSELS ................................ FIFTH APPELLANT
RYNO
ADRIAAN ROSSOUW ................................ SIXTH APPELLANT
RYAN
ALBUTT ................................ SEVENTH APPELLANT
and
THE STATE ................................
RESPONDENT
CORAM : FARLAM, NAVSA, VAN HEERDEN,
MLAMBO et COMBRINCK JJA
DATE : 1 NOVEMBER 2007
DELIVERED : 30 NOVEMBER 2007
Summary
: Criminal Law and
Procedure – common purpose in the context of culpable homicide
and public violence – whether duplication
of convictions –
sentence of 8 years confirmed – order contained in para 49.
Neutral citation: This judgment may be referred to as
Whitehead v The State
[2007]
SCA 171 (RSA)
JUDGMENT
COMBRINCK JA
/
COMBRINCK JA
:
[1] On 15 August 1995, the Municipal and Regional
Services Council workers of Kuruman went on strike and on 30 and 31
of that month
they decided to demonstrate to highlight their
grievances. To this end they marched through the streets of Kuruman,
chanting and
waving placards. In the course of the march they emptied
rubbish bins and threw the trash in the streets. The following day
they
again staged a march through the town. Their numbers were
estimated variously to be between 60 and 200. They again started
trashing
the streets but after the arrest of five of their numbers
they desisted and the demonstration continued peacefully. They halted
at
the taxi rank which is in the middle of the town and sat down on a
grassy area where they were addressed by their leader. The next
moment a posse of white men armed with pickhandles and sjamboks came
running down the street and without warning set upon the seated
workers and beat them indiscriminately with their weapons. The
workers fled in all directions pursued by their attackers. They, (the
attackers), then proceeded to smash cars belonging to blacks and
attack other black people who had nothing to do with the striking
workers. After the attack at least nine people remained lying on the
grass with various injuries. Mr Gaoretelwe Adam Brown, (‘the
deceased’), a municipal worker, was found next to a fence close
to the grass area unconscious with a wound to his head. He
was taken
to hospital where he subsequently died. The cause of death was an
injury to the head caused by a blunt instrument.
[2] The seven appellants and one other, Louis George
Rademeyer, were as a consequence of these events charged in the
regional court
with public violence (count 1), culpable homicide
(count 2), assault with intent to do grievous bodily harm (count 3)
and malicious
damage to property (count 4). They were convicted on
counts 1 and 2 and the seventh appellant was in addition convicted of
assault
with intent to do grievous bodily harm. The other appellants
were acquitted on count 3 and all the appellants on count 4 on the
basis
that these offences formed part of the offence of public
violence and it would lead to a multiplicity of convictions
(previously
known as splitting of charges) if they were to be found
guilty on these charges. The assault of which the seventh appellant
was convicted
related to events which took place later in the day and
were unconnected with the main assault on the striking workers. The
appellants
were sentenced on counts 1 and 2 to five years on each, of
which two years of the total was suspended. Thus an effective eight
years
imprisonment. The seventh appellant was sentenced to an
additional two years for the separate assault.
[3] The appellants appealed unsuccessfully to the High
Court, Kimberley, against the convictions and sentences. Rademeyer
absconded
and is a fugitive from justice. Leave to appeal to this
court was refused by the High Court but on application this court
granted
the appellants:
‘
2. Leave to appeal against
their convictions and sentences on the count of culpable homicide;
and against their sentences on the count
of public violence. The
seventh applicant was granted leave to appeal against the sentence
imposed on the count of assault with intent
to do grievous bodily
harm.’
Leave to appeal against the conviction of public
violence was not sought. In issue before us is therefore (i) the
propriety of the
conviction of culpable homicide; (ii) the sentence
in respect of that count; (iii) the correctness of the sentence on
the count of
public violence and (iv) the sentence imposed on the
seventh appellant in respect of the count of assault with intent to
do grievous
bodily harm.
[4] I deal first with the question whether culpable
homicide was proved. There was only one eyewitness to the actual
assault on the
deceased and that was Mr Westley Mabilo. He was not
one of the demonstrators but was in the vicinity when they came
marching down
the street. He, out of curiosity, joined them on the
grassy area to hear what the speaker had to say. He witnessed the
group of white
men clad in khaki arriving with pickhandles and
sjamboks approaching the seated workers and indiscriminately
assaulting them. He
and others fled in the direction of the station.
He ran up against a wire fence where he fell and was trampled
underfoot by the fleeing
demonstrators. People fell on top of him and
when he managed to extricate himself, he noticed a person lying
nearby. This person
had previously been lying on top of him. It is
common cause that this was the deceased. He then witnessed a man with
what he described
as a ‘kierie’ with a snake painted on
it striking the deceased on the head causing an open wound. This man
he said was
part of the group of white men who had launched the
attack at the grassy area. He also observed a uniformed policeman
striking the
deceased on the back with a rifle. Subsequently he
assisted others in placing the deceased, who was unconscious, in a
private vehicle
which then conveyed him to hospital. The evidence of
this witness was uncontroverted, the appellants having chosen not to
testify.
The defence did not seek to impugn his testimony.
[5] Counsel for appellants argued that the trial court
and the court
a quo
had
ignored this evidence. The evidence demonstrates, so it was
submitted, that the policeman may have caused the death of the
deceased,
that he had acted independently, alternatively, he and the
man with the stick with the snake on had acted independently of the
appellants.
There was therefore no causal connection between the
deeds of the appellants and the death of the deceased. The State, so
it was
argued, had failed to prove any negligence on the part of the
appellants in that a reasonable man in their position would not have
foreseen that an unknown person and a policeman would assault and
kill the deceased. With reliance on
S v
Thenkwa
1970 (3) SA 529
(A) counsel submitted
that the doctrine of common purpose cannot be applied in cases of
culpable homicide. In the alternative, in
so far as the doctrine has
been found to be applicable in cases involving culpable homicide, it
was argued that if one had regard
to the evidence relating to the
part each appellant played in the general assault, it cannot be found
that the requirement for culpability
on the basis of common purpose
as laid down in
S v Mgedezi
1989
(1) SA 687
(A) had been proved by the State.
[6] The fundamental difficulty which the appellants face
is that they chose not to appeal against the conviction of public
violence.
The basis of the conviction of that crime was that the
appellants had acted in concert and in furtherance of a common
purpose when
they set upon the workers, assaulted them and inflicted
damage to the motor vehicles. The appellants have in effect accepted
this
finding. They now strive to persuade us that, on the facts, the
assault upon the deceased was an isolated incident, unconnected to
the general assault, and committed by persons outside the group for
whose actions they cannot be held responsible. This argument
is not
supported by the evidence. The witness, Mabilo, made it clear that
the man with the stick was part of the attacking group.
It was he who
struck the deceased on the head more than once. He only saw the
policeman strike the deceased once on his back. It
is furthermore
clear from his evidence that the attack on the deceased was not
separated in time from the general attack. It was
on the evidence
part and parcel of the attack and pursuit of the workers, carried out
by a member of the attacking group.
[7] The reliance on
S v Thenkwa
(supra)
for the proposition that the doctrine
of common purpose is not applicable to culpable homicide is
misplaced. In that case the very
basis for finding that the two
accused were guilty of culpable homicide was that they had acted in
concert. What the court said must
be guarded against, is convicting a
person of murder or culpable homicide merely because he took part in,
or associated himself with
an assault on the victim. It must be
proved that each participant in the assault had the required
mens
rea
. Botha JA at p 534G spelt it out thus:
‘
Die skuld van elkeen moet
volgens sy eie handeling en sy eie gesindheid bepaal word. Waar
meerdere persone van strafbare manslag aangekla
word, is blote
deelname aan die onwettige daad wat die dood veroorsaak het, dus
onvoldoende om al die deelnemers vir die doodslag
strafregtelik
aanspreeklik te hou. Dit kan alleen voldoende wees indien daar by die
deelnemers ook skuld was met betrekking tot die
doodslag self. Aan
die skuldvereiste vir strafbare manslag word voldoen indien 'n
redelike persoon in die plek van die deelnemer
aan die onwettige
daad, wat die dood veroorsaak het, sou besef het dat 'n ernstige
besering in die uitvoering van die daad veroorsaak
sou kon word, en
dat hy sou voorsien het dat die besering moontlik lewensgevaarlik sou
kon wees.’
This is precisely what the trial court found when
determining fault on the part of each appellant. The magistrate said
the following:
‘
Gesien in die lig van die
gevaarlike aard van die wapens wat gebruik was, moes ieder en elke
een die redelike moontlikheid voorsien
het dat die strekking van
hulle gesamentlike opset die dood van die oorledene tot gevolg kan
hê.’
This court has confirmed that the doctrine of common
purpose is applicable to culpable homicide. See
S
v Nkwenja
1985 (2) SA 560
(A) at 573B;
Magmoed v Janse van Rensburg
[1992] ZASCA 208
;
1993
(1) SACR 67
(A) at 78b-d. The following passage from the former
judgment (at 573B-D) also disposes of the argument that no causal
connection
between the individual acts of the appellants and the
death of the deceased was proved:
‘
Strafbare manslag is die
wederregtelike, nalatige doodslag van 'n ander en behels in die
algemeen die vereiste van 'n kousale verband
tussen 'n handeling van
die beskuldigde en die dood. In die onderhawige geval is dit onseker
watter appellant die dodelike geweld
toegepas het en sou dit moeilik
wees om spesifiek aan die een of die ander van die appellante 'n
handeling toe te skryf wat
conditio
sine qua non
van
die dood was. Maar in ons praktyk word in gevalle soos die
onderhawige, waar daar voorafbeplanning was en dan deelneming aan
verwesenliking
van die gesamentlike oogmerk, nie altyd streng aan die
vereiste van kousaliteit (
sine
qua non
) gekleef
ten einde die een deelnemer strafregtelik aanspreeklik te stel vir 'n
gevolg van die handeling van 'n ander deelnemer nie.
Sonder om die
juiste grondslag van hierdie aanspreeklikheid uit te stip wil dit my
voorkom dat albei appellante wel aan strafbare
manslag skuldig is
(vgl die benadering in
S
v Ngobozi
1972
(3) SA 476
(A) op 478C - F).’
[8] Apart from the fact as mentioned earlier, that the
appellants have in effect conceded that they acted in concert by not
attacking
the conviction of public violence, the submission that the
acts of each appellant must be measured against the criteria laid
down
in
Mgedezi
’
s
case is without merit. As argued by counsel for the State, this is
not a ‘joining in’ type of case. Here the evidence
makes
it abundantly clear that the group of which appellants were part had
planned the attack in advance and their participation
in the attack
was the execution of the prior conspiracy. The group, according to
the undisputed evidence, assembled at an obviously
predetermined spot
near the town library. They were addressed by a person who in all
probability was the leader. A bakkie arrived
carrying pickhandles
which were handed out to the group. They then set off followed by an
ambulance which must have been arranged
in advance. They attacked
their target immediately without the slightest provocation or
warning. They were not deterred by a considerable
police presence.
Tear-gas was used and at least one of the group had a two-way radio
over which an order later came to the effect
that the group had to
withdraw. All conclusive proof of a pre-planned attack. The State
proved that each appellant was present as
part of the group and some
were seen assaulting the demonstrators and others performing acts
consistent with an association with
and furtherance of a common
purpose. Both the trial court and the court
a
quo
meticulously analysed the evidence
relating to each appellant. The findings were not attacked by the
appellants. Appellants’
counsel contended that on the evidence
none of the appellants struck the demonstrators on the head. All
blows were aimed at the body.
From this he said can be inferred that
the members of the group consciously avoided any life-threatening
blows. A reasonable man
in their position, so the submission
continued, would not have foreseen that one of their members would
strike a worker on the head.
There is no substance in this argument.
A number of witnesses testified to either receiving blows to the head
or seeing others being
struck on the head. One, Mr Joseph Kipoledi,
was rendered unconscious by a blow to the head and had to be treated
at hospital. Major
Scholtz, the senior policeman on the scene,
testified to the fact that nine people were left lying on the grass
after the attack
and he saw blood on their heads and faces. The
magistrate in his judgment on sentence recorded that 22 people were
injured.
[9] In summary, therefore, I conclude that the regional
magistrate correctly found that the appellants were guilty of
culpable homicide
and that the attack on the judgment is without
merit.
[10] During the course of argument counsel were
requested to address us on the question of a possible duplication of
convictions.
On the suggestion of the presiding judge counsel filed
additional heads of argument. Defence counsel contends that, because
of the
manner in which the appellants were charged, there has indeed
been a duplication of convictions. Counsel for the State argued to
the contrary. As stated at the commencement of the judgment, count 1
was that the appellants were guilty of public violence, count
2, that
they were guilty of culpable homicide. Count 1, (freely translated
from the Afrikaans), reads in summary as follows:
‘
That the accused are guilty of
public violence in that they on 31 August 1995 at Kuruman . . .
unlawfully and with common intent to
disturb the public peace by
violent means and to infringe the rights of other persons, committed
acts which assumed serious dimensions
in that they:
(a) armed with pickhandles, sticks and sjamboks
instilled fear in another group that they would be subject to
violence in order to
disperse;
(b) assaulted the said other group with intent to cause
grievous bodily harm;
(c) unlawfully and negligently killed Garoetelwe Adam
Brown by hitting him with pickhandles, sticks, sjamboks and other
objects;
(d) maliciously damaged motor vehicles, the property of
. . . (three named persons).’
Count 2 reads:
‘
The accused are guilty of
culpable homicide in that on 31 August 1995 at Kuruman . . . they
wrongfully and negligently killed Garoetelwe
Adam Brown.’
The only difference in the wording of that part of count
1 relating to culpable homicide with that in count 2 is the
description of
how death was caused. In essence the allegations are
identical. Counsel for the appellants contends that this is a
textbook case
of duplication of charges which has led to a
duplication of convictions. I consider that there is merit in this
argument. No doubt,
in order to emphasise that this was an aggravated
case of public violence, the State included as part of what it
intended proving
against the appellants, the fact that a human life
had been taken. In proving that part of count 1 (as it successfully
did) the State
on the same facts proved count 2. Put differently,
proof of culpable homicide as part of the offence of public violence
of necessity
proved the allegations in count 2. Nowhere in his
judgment does the magistrate indicate that in convicting the
appellants on the
main count he did not take into account or have
regard to the evidence relating to the wrongful killing of the
deceased. One passage
in his judgment, when dealing with count 1,
demonstrates that he did have regard to the fact that the deceased
had been killed. He
said:
‘
Die getuienis toon aan dat
slegs die swart mense beseer en een selfs gedood is en geeneen van
die wit groep is beseer nie, derhalwe
is dit duidelik dat die swart
groep hulle nie verweer het, selfs met die wapens tot hulle
beskikking nie.’
He concluded his judgment with a finding of guilty on
counts 1 and 2, thereby indicating that they were convicted as
charged. It is
relevant to note that in terms of
s 259
of the
Criminal Procedure Act, 51 of 1977
, public violence is a competent
verdict on a charge of culpable homicide. Notionally, if in the
present case the State was unable
on count 2 to prove the cause of
death, appellants could have been convicted of public violence. But
then they would have been found
guilty of public violence on count 1
too. It can never be suggested that this would be justified. In two
early reported decisions
it was held in analogous circumstances that
it is improper to convict an accused of two offences. I refer in this
regard to
R v Golisili
1927
EDL 115
and
R v Ntsukumbini
1929
EDL 218.
In both cases the accused was charged with ‘fighting’
(also known as ‘faction fighting’) in contravention
of a
proclamation and culpable homicide – two separate counts. It
was held to be improper to convict accused on both counts
where the
evidence was that the unlawful killing took place in the course of
the ‘fighting’. In his heads of argument
counsel for the
State does not answer the assertion that there is a duplication of
charges in the charge sheet. He maintains that
in terms of
s 83
of
the
Criminal Procedure Act the
State may put as many charges in a
charge sheet as could be proved by the facts. This is undoubtedly so,
but it does not follow that
the court is entitled to convict on
duplicated charges (see
R v Golisili
and
R v Ntsukumbini
supra).
State is entitled to duplicate charges. The remainder of the State’s
argument deals with the tests adopted by courts
over the years in
relation to the issue of multiplicity of convictions. As pointed out
earlier, where on the charge sheet there is
a duplication, the tests
referred to are irrelevant. It is so, as contended by counsel for the
State, that this issue was not raised
by the defence in the regional
court, the court
a quo
and
for that matter in this court until counsel’s attention was
drawn to it. Nevertheless it is a fundamental principle of our
law
that an accused should not be convicted and sentenced in respect of
two crimes when he or she has committed only one offence.
It forms
part of the right to a fair trial which is enshrined in the
Constitution. In my view, therefore, the appellants should not
have
been convicted on count 2. The magistrate should have dealt with this
count in the same manner as he dealt with counts 3 and
4. I would
therefore allow the appeal against conviction and sentence in respect
of count 2.
[11] I turn now to deal with the issue of sentence. It
is not clear from the magistrate’s judgment whether, when
determining
an appropriate sentence in respect of the public violence
count, he took into account the fact of the negligent killing of the
deceased.
The indications are that he did not as he imposed the same
period of imprisonment in respect of both counts 1 and 2. Whether one
sentences the appellants on the basis that they are guilty of public
violence excluding the culpable homicide and guilty of a separate
count of culpable homicide or whether one sentences them on the basis
of a conviction of public violence including the culpable homicide,
(with no additional count of culpable homicide), the sentence should
be the same. Having set aside the sentence on count 2, I would,
after
due notice of the intention to do so, and subject to what may be
advanced by the parties, consider increasing the sentence
on count 1
to the effective eight years imposed by the magistrate.
[12] Counsel was unable to point out any misdirection on
the part of the magistrate in his judgment on sentence. He was
constrained
to limit his submission to one that the sentences
cumulatively were shockingly inappropriate regard being had to the
circumstances.
The magistrate gave a very comprehensive judgment on
sentence in which he recorded all the factors he had taken into
account in considering
what an appropriate sentence should be. He
recorded and gave due weight to the personal circumstances of the
appellants. He took
into account the inordinate length of time it
took to commence and conclude the trial and the effect it must have
had on the appellants’
lives. He had regard to the seriousness
of the offences and the circumstances under which they had been
committed. Lastly he discussed
and gave due weight to the interests
of the community. It was a fair and balanced judgment which cannot be
faulted. The sentences
were not startlingly inappropriate, nor do
they induce a sense of shock. The appellants and their cohorts
brazenly, in broad daylight,
in the face of a substantial police
presence, set upon a group of peaceful workers and severely assaulted
them with lethal weapons.
They indiscriminately smashed cars of
innocent bystanders and pursued and assaulted other black persons who
had nothing to do with
the striking workers. Amongst those assaulted
were women and elderly persons. It was demeaning and humiliating to
them in the extreme.
A substantial jail sentence was, in my view,
warranted particularly where as a consequence of their actions a life
was lost. The
additional two years imprisonment imposed on appellant
7 was also justified. The assault of which he was convicted took
place at
two o’clock in the afternoon of the day in question,
long after the main attack had taken place. According to the state
witnesses
an unknown black man came into a local doctor’s
waiting-room and hid behind the door. Five to six white men, one of
whom was
appellant 7, entered, struck the man repeatedly with
pickhandles and sticks to such an extent that extensive bleeding from
his head
was observed. A tear-gas canister was activated and the
witnesses fled. When they returned the attackers and the unknown
black man
had disappeared. The brutal assault on an unarmed man,
outnumbered six to one, by men armed with lethal weapons is deserving
of an
additional period of direct imprisonment.
[13] I would therefore have:
(a) allowed the appeal of all the appellants against
their conviction and sentence on count 2 and set them aside;
(b) dismissed the appeal on sentence in respect of count
1 and appellant 7’s appeal against his sentence on count 3;
(c) considered increasing the sentence on count 1 in
respect of all appellants to an effective 8 years imprisonment.
…………………
.
P C
COMBRINCK
JUDGE OF
APPEAL
Concurs
:
FARLAM JA
NAVSA
et
VAN HEERDEN JJA
:
[14] We have had the benefit of reading the judgment of
our colleague Combrinck JA. Whilst we agree with his conclusion that,
on the
facts, the regional magistrate correctly convicted the
appellants of culpable homicide, we are constrained to disagree that
a confirmation
of a conviction on that charge would amount to a
duplication of convictions.
[15] Before addressing that question we consider it
necessary to place our perspective of the behaviour of the appellants
and their
cohorts on record. A white librarian, Ms Greyling,
testified that shortly before the attack she witnessed a number of
vehicles
and white people gathering in an area which she was clearly
able to see. One of their number addressed the assembled crowd. A
bakkie
arrived bearing a pile of new pick-axe handles which were then
distributed. It is common cause that, apart from these pick-axe
handles,
others of the group bore sjamboks or kieries. A municipal
ambulance accompanied this crowd as they set off in the direction of
where
the black workers had gathered. It is also common cause that at
some stage during the attack either an iron rod or a kierie was seen
lying on the seat of the ambulance and those black persons who had
been injured had understandably been most reluctant to be transported
by that ambulance to the hospital. The driver of the ambulance
refused to allow at least one injured person entry to the ambulance;
the perception of this person was that the driver formed part of the
white crowd.
[16] An important aspect of the attack which we deem
necessary to record is that the first victim of the attack was a
nature conservation
official who had arrived at the taxi rank near
where the workers had gathered to drop his aunt off there. He was
oblivious of the
workers’ strike and was totally unconnected to
the protest action. The white crowd had, without any provocation, set
upon his
car as he reversed to leave the area. The car was damaged
and he was physically threatened to such an extent that he felt in
danger
of his life. Without prompt police intervention he would, at
the very least, certainly have been seriously injured.
[17] Other important details of the attack and its
consequences are set out hereafter. Later that day, one black person
was pursued
by a small group of white assailants (including appellant
seven) into a doctor’s waiting rooms where he was set upon and
severely
assaulted.
[18] A group of attackers proceeded partly on foot and
partly in bakkies to a parking area alongside a shopping centre and
attacked
people in the vicinity, wielding pick-axe handles and
sjamboks.
[19] An attack was also unleashed on customers at a fast
food outlet within a shopping complex. The attacks were
indiscriminate, certainly
not limited to members of the group of
striking workers, and with women and elderly people also being
victims.
[20] One man was attacked as he was attempting to
close-up at his place of employment. He was severely beaten and a
woman at his place
of employment, who was attempting to leave the
scene, was pulled out off her vehicle and set upon.
[21] It is common cause that the police had to intervene
to prevent attackers in a bakkie from proceeding to the nearby black
township.
[22] An additional important fact is that at least some
members of the police appeared sympathetic to the attackers.
[23] Seen in proper perspective the attack was intended
to put the workers, who had dared to go on strike, in their proper
place.
It was an unashamed racist attack perpetrated more than a year
after the introduction of a constitutional order. It was arrogant
in
the extreme and incited terror amongst the black citizens of Kuruman.
[24] Cars of innocent passers-by were also attacked and
damaged by the marauding white assailants.
[25] During the course of the attacks referred to above,
Mr Garoetelwe Adam Brown (the deceased) was so severely injured
that
he subsequently died in hospital of blunt trauma to the head.
Another tragic consequence of these events was the revenge attack on
a white correctional services official in the nearby black township,
who was burnt alive in his vehicle.
[26] Lest the incorrect impression be created, it is
necessary to point out that the appellants in their heads of argument
did not
attempt to challenge the conviction of culpable homicide on
the basis that it constituted a duplication of convictions with the
conviction
on the public violence charge. Indeed, the following part
of the notice of application for leave to appeal is to the contrary:
‘
[H]oewel dit afsonderlike
skuldigbevindings regverdig het, moes die verhoorlandros die
aanklagte saamgeneem het vir doeleindes van
vonnis.’
[27] In respect of the charge of culpable homicide the
State’s case was that, in perpetrating excessively violent
assaults with
dangerous weapons on unarmed people, the white
attackers ought reasonably to have foreseen that the death of one or
more of the victims
might result. The defence to this charge
throughout the trial was that the death of the deceased was caused by
people unconnected
to the group of assailants and, in the
alternative, that there was no reasonable foresight of death of any
person. From a careful
perusal of the record as a whole, it is in our
view evident that neither the State nor the defence would have
conducted the trial
any differently had paragraph (c), as referred to
earlier,
1
not been included in the public violence charge sheet.
[28] The appellants in their heads of argument and in
their notice of appeal contended that no factual basis existed for
the conviction
on the charge of culpable homicide. Combrinck JA has
effectively dispelled this contention.
[29] It is also necessary to record that during the
hearing the question of the duplication of convictions was initially
raised
mero motu
by
members of the Bench. Counsel for the appellant was invited to
respond and twice disavowed reliance on this point. The presiding
judge then decided to invite the parties to submit further written
argument on this aspect. This has been received.
[30] We turn to deal with the question of duplication of
convictions. It is important to note that in the magistrates court
and in
the court below the parties were under no illusion that they
were dealing with two separate charges even though the following
paragraph
was, as pointed out by Combrinck JA, included in the charge
sheet dealing with public violence:
‘
That the accused are guilty of
public violence in that they on 31 August 1995 at Kuruman . . .
unlawfully and with common intent to
disturb the public peace by
violent means and to infringe the rights of other persons, committed
acts which assumed serious dimensions
in that they:
(a) . . .
(b) . . .
(c) unlawfully and negligently killed Garoetelwe Adam
Brown by hitting him with pickaxe-handles, sticks, sjamboks and other
objects;
. . .’
[31] With respect, Combrinck JA appears to see the
inclusion of this subparagraph as an end in itself. In proper
perspective the reasoning
appears to be as follows: since the State
chose to include the unlawful and negligent killing of the deceased
as one of the acts
going to prove public violence it is bound by that
choice and it necessarily follows that in convicting the appellants
of both public
violence and culpable homicide there is a duplication
of convictions.
[32] It is necessary to consider first, the applicable
section of the Criminal Procedure Act 51 of 1977 (the Act). Section
83 provides
as follows:
‘
If by reason of any
uncertainty as to the facts which can be proved or if for any other
reason it is doubtful which of several offences
is constituted by the
facts which can be proved, the accused may be charged with the
commission of all or any of such offences, and
any number of such
charges may be tried at once, or the accused may be charged in the
alternative with the commission of any number
of such offences.’
[33] Du Toit et al
Commentary on
the
Criminal Procedure Act
(Service
38, 2007)
at 14-5 summarises the effect of
s 83
in the following manner:
‘
Section 83
authorizes the
inclusion in the charge sheet of all the charges that could possibly
be supported by the facts, even if they overlap
to such an extent
that convictions on all or on some of the counts would amount to a
duplication of convictions . . . An accused
may thus not object, at
the beginning of the trial, to the charge sheet or indictment on the
basis that it contains a duplication
of charges. Such a duplication
will occur where more than one charge is supported by the same
culpable fact . . . In short, it is
the court’s duty to guard
against a duplication of convictions and not the prosecutor’s
duty to refrain from the duplication
of charges’.
2
[34] The proper enquiry is whether in reality there has
been a duplication of convictions. In order to address this issue it
should
be borne in mind that a single act may have numerous
criminally relevant consequences and may give rise to numerous
offences. Robbery
for example may be committed by means of more than
one act.
[35] There is no infallible formula to determine whether
or not, in any particular case, there has been a duplication of
convictions.
The various tests that have been formulated by our
courts (to which Combrinck JA refers) are not rules of law, nor are
they exhaustive.
They are simply useful practical guides and in the
ultimate instance, if these tests fail to provide a satisfactory
answer, the matter
is correctly left to the common sense, wisdom,
experience and sense of fairness of the court.
3
[36] It has always been accepted that a logical point of
departure is to consider the definitions of those offences in regard
to which
a possible duplication might have taken place.
4
[37] In the present case we have to start with the
definition of culpable homicide which is the unlawful,
negligent
killing of another human being. Negligence is assessed
objectively, according to the standard of the reasonable person. For
a conviction
of culpable homicide it must be shown beyond a
reasonable doubt that a reasonable person, in the same circumstances
as an accused,
would have foreseen the death of a victim as a
consequence of his or her conduct and that a reasonable person would
have taken steps
to guard against the foreseeable death.
5
[38] Public violence on the other hand may be defined as
the unlawful and
intentional
commission by a number of people acting in concert of
acts of sufficiently serious dimensions which are intended forcibly
to disturb
the public peace or security or to invade the rights of
others.
6
[39] In contesting multiple convictions it is often
submitted that they are premised on the same set of facts. This is,
in fact, the
so-called ‘evidence test’ sometimes applied
by the courts in determining whether or not there is a duplication of
convictions.
This test enquires whether the evidence necessary to
establish the commission of one offence involves proving the
commission of another
offence. In this regard, Bristowe J, in the
case of
R v Van Der Merwe
1921
TPD 1
at 5 pointed out that ‘…if the evidence necessary
to prove one criminal act
necessarily
involves evidence of another criminal act, those two are
to be considered as one transaction.
But if
the evidence necessary to establish one criminal act is complete
without the other criminal act being brought in at all then
the two
are separate crimes
.’ (Emphasis added).
[40] That the evidence test is not necessarily at all
decisive is also borne out by the following dictum of Rabie CJ in
S
v Nkwenja en ‘n Ander
1985 (2) SA 560
(A) at 571H-J:
‘
Die appellante se advokate het
voor Coetzee R aangevoer dat die appellant nie aan albei misdade
skuldig bevind kon gewees het nie
omdat “op dieselfde getuienis
betrefende die geweld wat uitgeoefen was, staatgemaak is om beide
misdade te bewys”. Dit
is ‘n verkeerde siening van die
saak. Strafbare manslag en roof is twee heeltemal verskillende
misdade. By die eerste het ‘n
mens te doen met die nalatige
dood van ‘n mens, en by die roof gaan dit om die gebruik, of
dreigement, van geweld om diefstal
te pleeg. Die oorweging dat die
geweld wat in die uitvoering van ‘n roof gepleeg is tot die
dood van die slagoffer gelei het,
kan aan die essensiële
verskille tussen die misdade nie afdoen nie. ‘n Verhoorhof sal
vanselfsprekend trag om ‘n
beskuldigde nie tweemaal vir
dieselfde geweld te straf nie, maar dit beteken nie dat iemand wat ‘n
ander in die loop van ‘n
rooftog dood, nie aan sowel roof as
strafbare manslag skuldig bevind kan word nie.’
[41] It is clear that the State can and often will be
able to prove the crime of public violence without any reference
whatsoever
to the negligent or other killing of any person. The
opposite is also true ─ the offence of culpable homicide is
capable of
proof independent of acts of public violence. Both
propositions hold good in the present case. The evidence of the
general disturbance
caused by the assailants to the public order
would be sufficient to secure a conviction on the public violence
charge. The State
was at liberty to continue to prove the offence of
culpable homicide.
[42] Another test which is sometimes applied by the
courts in determining whether there is a duplication of convictions
is the so-called
‘intention test’. In terms of this test,
if a person commits several acts, each one of which could be a
separate offence
on its own, but they constitute a continuous
transaction that is carried out with a single intent, his or her
conduct would constitute
only a single offence.
7
However, as pointed out by Wessels JA in
Grobler
supra at 523F-H:
‘
In so far as the “single
intent” and “continuous transaction” test is
concerned, the distinction between motive
and intent and the
different intents inherent in different offences must not be
overlooked . . .If a person breaks into a room intending
to steal
from the occupiers and does so at one and the same time it might be
said that in substance he committed only one offence.
Assuming he
enters and steals the goods of the first person while he is asleep
and then proceeds to the next person who awakes after
his property
has been stolen. In order to silence this person the accused renders
him unconscious with a blow to the head. The third
person is
awakened, and the accused then forcibly deprives him of his goods
before departing. Common sense suggests that the accused
may properly
be convicted of housebreaking with intent to steal and theft, assault
and robbery.’
[43] It can hardly be said that a group of people can
have a common
intention
to
commit culpable homicide, as the fault element of this offence by
definition lies in negligence. This is a common-sense approach.
[44] In the present case the group that had gathered
near the library had conspired to intimidate and teach the black
workers a lesson.
They were clearly intent on committing acts of
sufficiently serious dimensions and thereby forcibly to disturb the
public peace.
If in so doing they commit acts separate from that
which was intended, such as in this case the negligent killing of the
deceased,
it is clearly not only permissible, but also eminently fair
and just that they be held liable on that basis. Indeed, a court may
well in those circumstances be duty-bound to hold actors liable for
the separate unlawful acts perpetrated by them. Anything less
will
frustrate the public interest and the rule of law.
[45] What we have said above is substantiated by the
manner in which the entire trial was conducted in the trial court.
The State
set out to prove public violence by relying on the general
mayhem caused, and intended to be caused, by the white assailants.
The
primary defence to this was that the State did not prove the
participation of the appellants (ie a question of identification).
[46] It is clear from the regional magistrate’s
judgment that this is also the manner in which he viewed the matter.
In his
judgment, the evidence in respect of the culpable homicide
charge is dealt with in an entirely separate and distinct discussion
from
that on the public violence charge and the legal principles
governing public violence.
[47] For all the reasons set out above, the conviction
on the charge of culpable homicide does not amount to a duplication
of convictions
and must therefore be confirmed.
[48] The court below recorded that it had seriously
considered giving notice of the possibility of an increase in
sentence but decided
against it because of the lengthy delay in
finalising the trial. In this regard the appellants were fortunate.
At the commencement
of this judgment we recorded our perspective of
the moral opprobrium attaching to the conduct of the appellants. The
effect of what
Combrinck JA suggests might be to arrive at exactly
the same result as that arrived at by the regional magistrate on the
question
of sentence. It appears that the approach by our colleague
is, in effect that, although the appellants cannot legitimately be
held
liable for culpable homicide, over and above their being guilty
of public violence, they might in any event be punished for both.
On
his approach the conviction of culpable homicide falls away, but the
sentence for this offence might effectively be ‘transposed’
and ‘added’ to the sentence previously imposed in respect
of the conviction of public violence. In our view this would
effectively translate into the duplication which he apparently feels
himself constrained to avoid.
[49] We see no reason to interfere with the sentences
and accordingly the following order is made:
The appeal is dismissed.
_________________
M S NAVSA
JUDGE OF
APPEAL
_________________
B J VAN
HEERDEN
JUDGE OF
APPEAL
CONCUR:
D MLAMBO
JA
1
See
para [10] above.
2
See
in this regard
S v Grobler en ‘n
Ander
1966 (1) SA 507
(A) at 513E-H
(per Rumpff JA) and at 522E-523E (per Wessels JA). See also
S
v Gaseb and Others
2001 (1) SACR 438
(NMS) at 441a-442b and 465f-466d. In the latter case the accused
were charged with four counts of rape, the wording of all the
charges being identical. Faced with an argument based on duplication
of convictions, the Namibia Supreme Court upheld all the
convictions, holding that each of the four appellants had had sexual
intercourse with the complainant without her consent and that
each
had assisted the three others in turn in the rapes committed by
them.
3
See
R v Kuzwayo
1960
(1) SA 340
(A) at 343H-344C;
S v Prins
en ‘n Ander
1977 (3) SA 807
(A)
at 813H-814A;
S v Christie
1982
(1) SA 464
(A) at 485G-486A and
Gaseb
supra, at 451d-g.
4
Du
Toit et al (Service 38, 2007) 14-6
Grobler
supra at 512A,
Prins
supra at 814F;
S v N
1979 (3) SA 308
(A) at 311E;
S
v Moloto
1982 (1) SA 844
(A) at
849-850.
5
Jonathan
Burchell
Principles of Criminal Law
3
ed (2005) pp 159-160 and 674.
6
Ibid
p 867.
7
See
Du Toit et al (Service 38, 2007) op cit 14-8.