S v Molimi and Another (249/05) [2006] ZASCA 43; 2006 (2) SACR 8 (SCA) (29 March 2006)

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[2006] ZASCA 43
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S v Molimi and Another (249/05) [2006] ZASCA 43; 2006 (2) SACR 8 (SCA) (29 March 2006)

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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
Case No 249/05
REPORTABLE
In the matter between:
RICHARD
DITSHELE MOLIMI FIRST APPELLANT
MOKGOBE ISHMAEL
MASHOESHOE SECOND APPELLANT
and
THE
STATE
RESPONDENT
Coram: Zulman, Van
Heerden JJA et Cachalia AJA
Heard: 20
March 2006
Delivered: 29 March 2006
Summary: The ‘rules’
pertaining to the reception of hearsay evidence under
s 3
of the
Law
of Evidence Amendment Act 45 of 1988
must be followed for reasons of
fairness to an accused. But it does not follow that if these rules
were not strictly complied with,
the trial was unfair –
Robbery and murder on the
basis of common purpose doctrine – forseeability – gang robbery
with the use of firearms – one gang
member taking hostage while
fleeing on a frolic of his own. Hostage killed accidentally by
bystander. Not foreseeable by other participants
in common purpose –
Requirements
for proof of unlawful possession of firearms stated – possession by
one gang member not to be imputed to another.
Neutral citation: This judgment may
be referred to as
Molimi v The State
[2006] SCA 38 (RSA)
_____________________________________________________
JUDGMENT
_____________________________________________________
CACHALIA AJA
[1] On 30 October 2000 a robbery took
place at the Clicks store at Southgate Mall, Johannesburg. Arising
therefrom the two appellants
were indicted with one other accused
(accused 1) in the Johannesburg High Court before Makhoba AJ on
charges of robbery,
1
attempted murder, the unlawful possession of fire-arms and
ammunition,
2
kidnapping and two counts of murder – seven charges in all.
[2] The undisputed facts are that at
approximately 11 am on the day of the incident, a security officer in
the employ of Fidelity
Guards arrived at Clicks to collect money in
accordance with his usual routine. He entered the cash office where
the store manager
(the first appellant) and a female employee of
Clicks were present. They handed to him an amount of money, which he
transferred into
a container. As he was leaving the store in
possession of the container, four armed men entered. Two of them
confronted him and ordered
him back into the cash office where they
instructed him to empty the contents of the container into a black
bag, which he did. The
intruders then ordered him into a safe in the
store together with the first appellant. The female employee had in
the meantime fainted.
[3] As the robbers fled with their
loot there was an exchange of gunfire between one of the robbers and
a Clicks security guard. The
robber and the security guard were
fatally wounded in the exchange. The robber died on the scene, the
security guard later in hospital.
The death of the security guard
formed the basis of the second count (murder), the first count being
robbery.
[4] The gunfire attracted the
attention of a bystander in the shopping mall. As the three other
robbers ran in his direction towards
the exit, they pointed their
firearms at him, but did not shoot. He then drew his firearm and
shouted at them to drop theirs. They
ignored his warning as they ran
towards the exit of the mall. He pursued accused 1 who dropped the
bag he was carrying and attempted
to take refuge in a store near the
exit. Once in the store, accused 1 turned around to face his pursuer,
pointing a firearm at him
at the same time. The man reacted by
discharging one shot from his firearm in the direction of accused 1.
It missed accused 1 but
struck an employee in the store instead. In
response, accused 1 retreated further into the store, this time
taking a young man as
hostage with him. While holding the hostage
with a firearm pointed at the hostage’s head, he ordered the
bystander to surrender
his firearm. Instead the bystander fired at
him. This time the bullet struck the hostage instead, fatally
wounding him. Accused 1
then eventually laid down his firearm and
surrendered. The taking of the hostage and his subsequent accidental
fatal shooting formed
the basis of the murder and kidnapping charges
in counts 3 and 7. The attempted murder charge (count 4) arose from
the injury to
the employee who had also accidentally been shot by the
bystander.
[5] In the court
a quo
the
appellants and accused 1 pleaded not guilty to all seven counts. They
obtained legal aid and were each separately represented,
but were
convicted and sentenced to the following terms of imprisonment on
each of the seven counts: count 1 (robbery) 15 years;
count 2 (murder
of the Clicks security guard) life imprisonment; count 3 (murder of
the hostage) 15 years; count 4 (attempted
murder of the injured
employee) three years; count 5 (unlawful possession of firearms) four
years; count 6 (unlawful possession of
ammunition) one year, and
count 7 (kidnapping of the hostage) three years. They each received
effective sentences of life imprisonment.
Only the two appellants
applied for and were granted leave to appeal against their
convictions.
[6] In convicting the appellants the
court
a quo
accepted that the state had proved that the first
appellant, who as I mentioned earlier, was the Clicks store manager
at the time
of the incident, had initiated and planned the robbery
with the assistance of the second appellant. As an ex-employee of
Fidelity
Guards the second appellant used to accompany the security
officer (referred to in para 2) to collect money from Clicks. He had
been
familiar with this routine, a fact that was known to the first
appellant when he enlisted the second appellant’s assistance for
the operation. For his part, the second appellant recruited accused 1
and three others to carry out the robbery.
[7] The evidence disclosed that
accused 1 had made a statement to the police on the day of his arrest
implicating himself and both
appellants. In it he stated that the
second appellant had contacted him on his cellphone six days before
the robbery. They arranged
a meeting with three others where the
second appellant informed them that the first appellant had given him
a tip-off about money
that could be ‘taken’ from Clicks. Two days
later, the statement continued, he met with the first appellant to
discuss the detail
of the operation. The first appellant told him
that when the fidelity guard arrived to collect the money, he would
alert him on his
(accused 1’s) cellphone, first to inform him that
the guard had arrived, and again when the guard was leaving. The
details were
finalised at a subsequent meeting with the first
appellant the day before the robbery. The rest of the statement
contains details
of the cellphone contact between accused 1 and the
appellants on the day of the robbery. It also describes how the
robbery occurred,
which accorded with the eye-witness accounts of the
incident.
[8] The first appellant was arrested a
day after the robbery, the second appellant two months later. The
second appellant also made
a statement to the police implicating the
first appellant and himself in the robbery. The statement describes
how the first appellant
contacted him a week before the robbery; the
subsequent meeting between them and accused 1; the second appellant’s
communication,
by cellphone, with accused 1 on the morning of the
robbery, and the cellphone call from the first appellant to him after
the robbery,
when the first appellant had expressed his displeasure
at the failure of the robbery.
[9] The statements were admitted as
part of the evidence after the trial court had conducted hearings on
their admissibility. The
evidence of certain cellphone records of the
three accused, which was not challenged, corroborated the statements.
This evidence,
together with the fact that the trial court had found
the testimony of the three accused during their defence to be
mendacious, was
the basis for the convictions of the appellants.
Accused 1 was, as it were, caught red-handed at the scene of the
robbery.
[10] The appellants challenge their
convictions on the following basis. Firstly, it is contended on
behalf of the first appellant
that the statements made by accused 1
and the second appellant were inadmissible against him, because of
their hearsay character.
Similarly, the second appellant takes issue
with admissibility of the statement by accused 1 against him. In
addition he insists
that the statement which he made to the police
was untrue and not made voluntarily. It should, so it is contended,
have therefore
been disallowed. Secondly, and in the alternative, the
appellants contend that, if the statements were admissible, thereby
establishing,
against them, a case based on common purpose to rob the
Clicks store, the actions of accused 1 in taking a hostage, and the
actions
of the bystander which resulted in the death of the hostage
and injury to an employee (counts 3, 4 and 7) were not forseeable by
them as part of the execution of the common purpose. Finally, the
appellants contend that, as there had been no evidence that they
had
possessed firearms and ammunition (counts 5 and 6), their conviction
on those counts on the basis of the common purpose doctrine
was
wrong.
[11] I deal first with the
admissibility of the incriminating hearsay statements. The challenge
is a narrow one, the contention being
that the trial court
disregarded the ‘rules’ governing the admissibility of hearsay
evidence under
s 3
of the
Law of Evidence Amendment Act 45 of 1988
3
(the Act) that were laid down in the following terms by this court in
S v Ndhlovu and Others
:
4
‘
[A]n
accused cannot be ambushed by the late or unheralded admission of
hearsay evidence. The trial court must be asked clearly and
timeously
to consider and rule on its admissibility. This cannot be done for
the first time at the end of the trial, nor in argument,
still less
in the court’s judgment, nor on appeal. The prosecution, before
closing its case, must clearly signal its intention
to invoke the
provisions of the Act, and, before the State closes its case, the
trial Judge must rule on its admissibility, so that
the accused can
fully appreciate the full evidentiary ambit he or she faces.’
[12] The trial court was not asked, in
clear terms, to rule on the admissibility of the extra-curial
statements against the appellants.
The prosecutor did not, before
closing her case, expressly signal her intention to invoke the
provisions of the Act and the trial
judge made no explicit ruling on
their admissibility as against the appellants until handing down his
judgment. This much is common
cause.
[13] In the relevant passage of
Ndhlovu
,
5
Cameron JA was in my view clearly not laying down an inflexible rule.
On the contrary he pointed out that whereas the common law
rule,
which excludes all hearsay evidence subject to certain recognised
exceptions, is excessively rigid and inflexible (and occasionally
even absurd), the Act has the virtue of creating ‘supple standards
within which courts may consider whether the interests of justice
warrant the admission of hearsay notwithstanding the procedural and
substantive disadvantages its reception might entail.’
6
In formulating the rule, Cameron JA’s overall concern was one of
fairness to an accused who is confronted with hearsay evidence.
His
opening remarks in the passage quoted above thus make clear that the
reception of the hearsay evidence must not surprise the
accused,
coming at a stage in the trial when he or she is unable to deal with
it. In a similar vein his closing remarks emphasise
that the accused
must understand the full evidentiary ambit of the case against him.
[14] The touchstone for the admission
of hearsay evidence in terms of the Act is always whether the
‘interests of justice’ justify
it. The real question therefore is
not whether the ‘rule’ formulated by Cameron JA was strictly
complied with. Patently it had
not been. What this court must ask
itself is whether, in the circumstances of this case, the reception
of the hearsay evidence was
unfair to the appellants and therefore
not in the ‘interests of justice’.
7
[15] It is important to examine how
the trial court dealt with the admissibility of the two statements in
issue. The statements that
were attributed to accused 1 and the
second appellant were admitted into evidence ‘provisionally’.
Accused 1’s statement was
held to be admissible against him on the
basis that he denied having made any statement to the police. His
version was that the police
had written the statement. The words, he
said, were theirs, not his. As the voluntariness of the statement was
not in issue the court
correctly ruled that it was admissible against
him. Likewise the second appellant’s statement that he had made to
the police was
ruled admissible against him after the court rejected
his version that he had been induced to make the statement as a
result of an
assault and promises by the police.
[16] At the conclusion of the State’s
case, the only evidence against the appellants were the
abovementioned cellphone records that
linked the three accused and,
in the case of the second appellant, his own statement that had been
found to be admissible against
him. Their counsel brought
applications for their discharge in terms of
s 174
of the
Criminal Procedure Act 51 of 1977
.
[17] It is clear from a perusal of the
trial record that
Ndhlovu
loomed large in the proceedings
during the ‘trial-within-a-trial’ of accused 1 and also during
the discharge applications by
the appellants. Thus, during the
‘trial-within-a-trial’ to determine the admissibility of the
statement that had been made by
accused 1 to the police, the question
whether counsel for the appellants would cross-examine the various
state witnesses arose. It
was assumed that they would be entitled to
do so after counsel for the second appellant had pertinently informed
the court that the
effect of the
Ndhlovu
judgment was to
render a hearsay statement by accused 1 admissible against the
appellants. On this basis the court indicated
that counsel for the
appellants were entitled to put questions to any witness who would
testify on the admissibility of the statements.
[18] During the discharge application
counsel for the second appellant accepted that the implication of
Ndhlovu
was that he would have to impugn the evidence of
accused 1 if he chose to testify. This was because it had been clear
to him that
the statement that had been made by accused 1 was
admissible against his client. In opposing the discharge application,
the prosecutor
relied squarely on this case. She however assumed,
wrongly, that the holding in
Ndhlovu
related to confessions,
whereas quite clearly, it did not. It dealt with the admissibility of
extra-curial statements, other than
confessions envisaged in
s 219
of
the
Criminal Procedure Act 51 of 1977
.
8
In reply counsel for the first appellant confined himself to
disputing the admissibility of the statements by accused 1 and the
second
appellant, which incriminated his client, on the basis that
they were confessions. As it is common cause that neither the
statement
by accused 1, nor that of the second appellant, were
‘confessions’ within the meaning of
s 219
, counsel’s submission
in this regard was wrong. This much was correctly conceded during the
appeal. For his part counsel for the
second appellant submitted that
because the statements were admitted ‘provisionally’ their status
was unclear.
[19] The learned judge refused the
application for the discharge of the two appellants. His reasons do
not contain any reference to
Ndhlovu.
However this is what he
said:
‘
In
the present case…there are statements which I ruled to be
admissible. Whether it is provisional or not is immaterial. The fact
remains that at this stage of the proceedings, they are part of the
record and I have admitted it. These two statements by accused
1 and
3 implicate accused 2.’
9
[20] Despite it being unclear from the
judge’s ruling whether the extra-curial statements by accused 1 and
the second appellant
were admissible against their co-accused, there
could have been no doubt in the minds of counsel for the appellants,
in the light
of what had transpired during the ‘trial-within-a-trial’
of accused 1 and the discharge application, that the extra-curial
statement
by accused 1 was not only part of the state case against
him, but also against them. They should, if there was doubt, have
asked
the judge to clarify the position before deciding whether or
not their clients would testify in their defence. For the first
appellant,
he had the added problem that he would have to deal with
second appellant’s incriminating statement. The second appellant
had very
little option but to testify in the light of his failure to
successfully challenge the admissibility of the statement that he had
made.
[21] Despite the overwhelming evidence
against accused 1 his testimony was no more than a bare denial of any
involvement, by him or
the appellants, in the commission of the
offences. In respect of the statement that he had allegedly made to
the police soon after
his arrest, which was ruled admissible against
him, he maintained that the police had fabricated it. Understandably
he was not cross-examined
on this aspect by counsel for either
appellant.
[22] After accused 1 closed his case,
the first appellant elected to testify. At this stage, without the
incriminating extra-curial
statements by his two co-accused, the only
evidence against him were the cellphone records referred to earlier.
While incriminating,
creating a strong suspicion of his complicity in
the events of the day, the records would not, in my view, without any
further evidence,
have created a suffficient basis to convict him.
The statements were destructive of his case because they explained
the cellphone
records. This much was conceded by counsel in argument
before us. His election to testify can therefore only be explained in
the
light of this realisation.
[23] The first appellant was
cross-examined by the prosecutor on the statement by accused 1
without any objection to its admissibility
against him. So too, the
second appellant. In these circumstances it is clear that the
appellants were not labouring under any misapprehension
regarding the
admissibility of the extra-curial statements against them. I must add
that there can be no suggestion, nor was there,
that the
cross-examination of the appellants on the extra-curial statements by
their co-accused was unfair.
[24] Having regard to the factors
enumerated under
s 3(1)(c)
of the Act, I have no doubt that the
admission of the hearsay evidence contained in the extra-curial
statement by accused 1, against
the appellants, was in the ‘interests
of justice.’ The statement had been made soon after the accused had
been arrested, in circumstances
where he had been caught red-handed.
His subsequent disavowal of the statement was correctly found to have
been untruthful. The evidence
of the contents of the statement had
been tendered by the state for the purpose of explaining and placing
the cellphone records in
perspective. Indeed the corroboration of
important aspects of the statement by the cellphone records confirmed
its probative value.
As Goldstein J observed in another context:
‘(t)he evidence concerned so convincingly completes the mosaic of
the State case .
. . it would be absurd to disregard it.’
10
The tendering of this evidence against the appellants came as no
surprise in the sense that they were unable to deal with it. They
were able to cross-examine accused 1 if they so wished and to deal
with it in the preparation and presentation of their cases. There
was
no prejudice to them and the fairness of the trial had not been
compromised.
11
[25] Counsel for the appellants
conceded, quite properly, that if the statement by accused 1 was
admissible against their clients,
there would be no basis to
challenge their convictions on the first two counts (robbery and
murder of the security guard). It is
therefore not necessary to deal
with whether the statement that was made by the second appellant was
properly admitted. Even without
this statement his conviction on
these counts must stand.
[26] Before I turn to deal with the
remaining convictions, comment is warranted on the way in which the
prosecutor and the trial judge
dealt with the issue of the
admissibility of the extra-curial statements. The prosecutor was
aware throughout the trial that admissibility
of statements, which
would be hearsay against the appellants, was crucial to the State
case. She was aware of the
Ndhlovu
judgment and brought it to
the attention of the trial judge. Yet she inexplicably failed
expressly to indicate her intention to invoke
the provisions of the
Act. Nor did the trial judge rule on the admissibility of the hearsay
statements against the appellants, despite
Ndhlovu
having been
brought
to his attention.
[27] The trial court’s admission of
the evidence ‘
provisionally’
was regrettable. The Act
allows the admission of hearsay evidence on a provisional basis when
‘the person upon whose credibility
the probative value of such
evidence depends, himself testifies (later) at such proceedings.’
If the person does not testify the
evidence must be left out of
account.
12
However there is no such requirement when the hearsay evidence is
required to be admitted in the ‘interests of justice’. In such
a
case, as
Ndhlovu
makes clear, ‘the trial Judge must rule on
its admissibility so that the accused can appreciate the full
evidentiary ambit he or
she faces.’
13
A vague provisional ruling, as was made in this case, is not
conducive to such an appreciation and may be prejudicial to an
accused.
14
It conflates the admissibility of the evidence with its weight and
may leave an accused unfairly in a state of uncertainty.
[28] What was required in this case
was a clear request by the prosecutor that she would seek the
admission of the statement by accused
1 against the appellants, and
the second appellant’s statement against the first appellant, in
terms of the Act. It was her duty
to do so. The trial judge, for his
part, was under a duty to make a clear ruling on the admissibility of
these statements. The prosecutor’s
and judge’s failure in this
respect is regrettable.
15
However, as indicated above, in the circumstances of the
present
case, it did not render the trial of either appellant unfair.
[29] I turn to deal with counts 3, 4
and 7. The appellants submit that the sequence of events commencing
with accused 1 taking a hostage
and culminating in the death of the
hostage and injury to the employee from the bystander’s gunshots
was not forseeably part of
the common purpose. They should,
accordingly, have been acquitted on these counts.
[30] In support of their contention
they rely on two cases that were decided in this court. The first is
S v Talane
16
where the facts briefly were that three robbers, two of whom had
firearms, entered a shop, tied up a shopkeeper and his friend and
then helped themselves to whatever they were able to take with them.
As they left, the shopkeeper and his friend managed to free
themselves. The shopkeeper pursued one of the robbers, firing at him.
The other robbers fled in another direction. Just as the shopkeeper
had stopped firing, having run out of ammunition, his friend called
him back. As he turned back, responding to his friend’s call,
the
robber he had been pursuing fired two shots, fatally wounding him.
The question on appeal was whether one of the other robbers
who had
fled in a different direction should have been convicted, on the
basis of common purpose, for the murder. It was found, on
the facts,
that once the shopkeeper had emptied his firearm and turned his back
on the robber, he had no longer been endeavouring
to prevent the
robbers from escaping. Accordingly the court held that it would be
unfair to hold that the other robber, who was probably
far out of
danger when the shopkeeper had been shot, could be said to have
fallen within the limits of what he would have foreseen
and
reconciled himself therewith.
[31] The second case relied on is
S
v Munonjo en ‘n Ander.
17
The appellants, who were unarmed, had broken into a house
intending to steal. They were aware that the occupants were probably
armed.
One of them had a ligature in case it became necessary to tie
them up. One of the two occupants produced a firearm but was disarmed
by one of the appellants who then shot both the occupants. Both
appellants were convicted of murder. On appeal the appellants blamed
each other for what had happened. It had therefore not been possible
to determine which of them had fired the fatal shots. The court
found
that the facts had established that the common purpose extended only
to a possible assault of the occupants as they would have
had to have
tied them up if necessary. They could not, reasoned the court, have
subjectively forseen the extraordinary turn of events
and the
possibility of death. Their appeals on the murder count were
accordingly upheld.
18
[32] The facts in the two cases relied
upon are very different from this instance. In
Talane
the
shopkeeper had ended the pursuit of the robbers before he had been
shot and in
Munonjo
the use of firearms had not been
contemplated as the housebreakers were unarmed. In the present matter
the robbers were still in the
process of fleeing, having exchanged
gunfire with inter alia the deceased security guard when the
bystander intervened. Nevertheless
the principle sought to be
extracted from these cases by counsel for the appellants is that if,
in the execution of a common purpose,
one of the participants to the
common purpose commits an unlawful act, which is so unusual or
extraordinary that it falls outside
what was foreseeably contemplated
by the other participants, they cannot be held liable for that act.
On this basis it is submitted
that the occurrence that led to the
commission of these offences (the bystander’s intervention and the
hostage taking by accused
1), was so far removed from the actual
common purpose, ie robbery with the use of firearms, that it could
not have been forseeable
by the appellants.
[33] The submission is not novel. It
has long been accepted that the operation of the common purpose
doctrine does not require each
participant to know or foresee in
detail the exact manner in which the unlawful consequence occurs.
19
Were it otherwise, it would not be possible to secure a conviction
simply on the basis that some event had happened during the execution
of the common purpose that all the participants in the common purpose
had not more or less planned for. All that is required for
the state
to secure a conviction on the basis of common purpose is that an
accused must foresee the possibility that the acts of
the
participants may have a particular consequence, such as the death of
a person, and reconciles himself to that possibility.
20
[34] The evidence shows that the first
appellant initiated and then planned the robbery in collaboration
with the second appellant
and accused 1. It was foreseeable that, in
the execution of the robbery and during the flight of accused 1 and
his fellow robbers,
firearms may be used to overcome any resistance
that they encountered. They reconciled themselves to this
possibility. Their conviction
for the murder of the security guard on
this basis is therefore uncontroversial.
[35] As
uncontentious, in my view, is the conviction for the attempted murder
of the employee (count 4). The fact that resistance
to the escape
arose from the actions of a private citizen is not, as counsel tried
to persuade us otherwise, of any consequence.
Nor is the fact that,
at the time the bystander fired his first shot injuring the employee,
he was under no legal duty to stop the
fleeing robbers. Once all the
participants in the common purpose foresaw the possibility that
anybody in the immediate vicinity of
the scene could be killed by
cross-fire, whether from a law enforcement official or a private
citizen, which in the circumstances
of this case they must have done,
dolus eventualis
was proved.
21
[36] But the taking of the hostage by
accused 1 falls into a different category. It is probable that at the
time he took the hostage,
his co-robbers had escaped through the exit
of the shopping complex. He was therefore on his own when he took the
hostage while seeking
refuge from the man who was pursuing him. By
taking a hostage he had, in my view, embarked on a frolic of his own.
These actions
could hardly have been forseeable by the other
participants in the common purpose. To hold otherwise, as the court
a
quo
did, would render the concept of forseeability so dangerously
elastic as to deprive it of any utility. To put it another way, the
common purpose doctrine does not require each participant to know or
forsee every detail of the way in which the unlawful result
is
brought about. But neither does it require each participant to
anticipate every unlawful act in which each of the participants
may
conceivably engage in pursuit of the objectives of the common
purpose. It is apparent that the unlawful act of hostage taking
by
accused 1, in the circumstances of this case, was so unusual and so
far removed from what was foreseeable in the execution of
the common
purpose that it cannot be imputed to the appellants. The convictions
relating to the kidnapping and murder of the hostage
(counts 7 and 3)
can therefore not stand.
[37] Counts
5 and 6 relate to the unlawful possession of firearms and ammunition.
It is common cause that the appellants, at no stage,
had physical
possession of any firearms themselves. Despite this they were
convicted on these counts. The state sought to defend
these
convictions on the basis of the decision by this court in
S v Khambule
22
where it was held that the common intention to possess firearms
jointly may be inferred in the circumstances of a particular case.
One such case, said the court, was where there was an intention of a
gang of robbers to use firearms in the execution of a robbery.
In
this situation, said the court, the possession of the firearms is
advantageous to each of the members of the gang. Therefore,
the court
reasoned, each member of the gang associates himself or herself with
the possession of the firearms by every other gangmember.
However in
S v Mbhuli
23
this court was subsequently unable to agree with this reasoning.
Instead it approved of Marais J’s reasoning in
S v Nkosi
24
where he set out the law on this question in the following terms:
‘
The
issues which arise in deciding whether the group (and hence the
appellant) possessed the guns must be decided with reference to
the
answer to the question whether the State has established facts from
which it can properly be inferred by a Court that:
(a) the group had the
intention (
animus
) to exercise possession of the guns through
the actual detentor and
(b) the actual detentors
had the intention to hold the guns on behalf of the group.
Only if both requirements
are fulfilled can there be joint possession involving the group as a
whole and the detentors, or (common
purpose)
25
between the members of the group to possess all the guns.’
[38] It follows that
Khambule
was overruled by
Mbhuli,
and is no longer good law. The
state’s reliance on it is therefore misplaced. Having failed to
meet the requirements as stated
in
Nkosi
,
the State had
not established any basis for the conviction of the appellants. The
convictions on these counts must therefore also
be set aside.
[39] In the result the following order
is made:
The appeal by the appellants against
their convictions on counts 1, 2 and 4 are dismissed;
The appeal by the appellants against
their convictions on counts 3, 5, 6 and 7 is upheld. Their
convictions and sentences on these
counts are set aside.
____________
A CACHALIA
ACTING
JUDGE OF APPEAL
CONCUR:
ZULMAN
JA
VAN
HEERDEN JA
1
Robbery
with aggravating circumstances, as described in
s 1
of the
Criminal
Procedure Act 51 of 1977
.
2
In
contravention of
ss 2
and
36
read with ss 1 and 39 of the Arms and
Ammunition Act 75 of 1969.
3
‘
(1) Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless –
(a) each party against
whom the evidence is to be adduced agrees to the admission thereof
as evidence at such proceedings;
(b) the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c) the
court, having regard to –
(i) the nature of the
proceedings;
(ii) the
nature of the evidence;
the purpose for which
the evidence is tendered;
the probative value of
the evidence;
the reason why the
evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
any prejudice to a
party which the admission of such evidence might entail; and
any other factor which
should in the opinion of the court be taken into account,
is of the opinion that
such evidence should be admitted in the interests of justice.
(2) The provisions of ss
(1) shall not render admissible any evidence which is inadmissible
on any ground other than that such evidence
is hearsay evidence.
(3) Hearsay
evidence may be provisionally admitted in terms of ss (1)(b) if the
court is informed that the person upon whose credibility
the
probative value of such evidence depends, will himself testify in
such proceedings: Provided that if such person does not later
testify in such proceedings, the hearsay evidence shall be left out
of account unless the hearsay evidence is admitted in terms
of para
(a) of ss (1) or is admitted by the court in terms of para (c) of
that subsection.
(4) For
the purposes of this section –
“
hearsay evidence”
means evidence, whether oral or in writing, the probative value of
which depends upon the credibility of any
person other than the
person giving such evidence;
“
party”
means the accused or party against whom hearsay evidence is to be
adduced, including the prosecution.’
4
2002
(6) SA 305
(SCA) para 18
.
5
Referred
to above in para 11 of this judgment.
6
See
S v Ndhlovu
above paras 14-15.
7
Cf
Key v Attorney General, Cape Provincial Division, and Another
[1996] ZACC 25
;
1996 (2) SACR 113
(CC) para 13 which deals with the
admissibility of unconstitutionally obtained evidence.
8
Section
219
of the
Criminal Procedure Act states
: ‘No confession made by
any person shall be admissible as evidence against any other
person.’
9
Record
Vol. 5 p 456-457.
10
Quoted
in
S v Ndhlovu
above para 39.
11
Cf
S v Ramavhale
1996 (1) SACR 639
(A) at 650i-651g.
12
Section
3(1)(b)
read with
s 3(3).
13
">
13
See
quotation above para 11.
14
See
S v Ramavhale
above
p 651b-c.
15
See
S v Ramavhale
loc cit.
16
1986
(3) 196 (A) at 207E- 208A.
17
1990
(1) SACR 360
(A).
18
They
were however convicted as accessories after the fact of murder.
19
CR
Snyman
Criminal Law
4ed p 262;
R v
Shezi
1948
(2) SA 119
(A) at 128. Cf
S v Munonjo
above at 364a-c where
the principle was said to be inapplicable to the facts of that case.
20
See
Snyman above p 265.
21
See
S v Nhlapo
1981 (2) SA 744
(A) at 751A-B.
22
2001
(1) SACR 501
(SCA) para 10.
23
2003
(1) SACR 97
(SCA) para 71.
24
1998
(1) SACR 284
(W) at 286h-i.
25
Save
for the reference to common purpose, the court approved of Marais
J’s reasoning.