S v Mambo and Others (143/01) [2006] ZASCA 82; 2006 (2) SACR 563 (SCA) (31 May 2006)

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[2006] ZASCA 82
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S v Mambo and Others (143/01) [2006] ZASCA 82; 2006 (2) SACR 563 (SCA) (31 May 2006)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 143/01
REPORTABLE
In the matter between:
SYDNEY THABO MAMBO
FIRST APPELLANT
EUGENE
THABO MOROANE SECOND APPELLANT
REGINALD HLAKO
THIRD RESPONDENT
and
THE
STATE
RESPONDENT
Coram: Navsa, Brand JJA
et Cachalia AJA
Heard: 15
May 2006
Delivered: 31 May 2006
Summary: Three accused escaping from
lawful custody. Court orderly murdered in the process. Murder not
reasonably foreseeable by one
of the accused. Conviction of murder on
the basis of the common purpose doctrine not competent. Sentence –
Prescribed sentence
of 15 years’ imprisonment for robbery. Whether
substantial or compelling circumstances exist.
Neutral citation:
This judgment may be referred to as
Mambo v The State
[2006]
SCA 74 (RSA)
_____________________________________________________
JUDGMENT
_____________________________________________________
CACHALIA AJA
[1] The three appellants had been
arrested on armed robbery and related charges arising from a
carjacking incident, appellants 1 and
3 on 19 December 1996, and
appellant 2 on 3 January 1997. They appeared in the Pretoria
Magistrate’s Court from time to time,
but remained in custody at
all times since their arrest, while their fourth co-accused was
released on bail.
[2] On 19 May 1998, having been in
custody for approximately one and a half years, they appeared in
court 7, situated on the third
floor of the building. Appellant 2 and
the fourth co-accused were represented by attorney, Marius Scheepers.
Appellants 1 and 3 conducted
their own defences. After the State had
closed its case on that day, Scheepers applied for a discharge of his
two clients. Judgment
was reserved and the case postponed to the 18
th
of August. Bail was denied to appellants 1 and 3. Though appellant
2’s bail was reduced from R4 000 to R2 000, it was still
unaffordable.
He had to return with the two other appellants to the
holding cell adjacent to the court. At that time there was another
awaiting-trial
prisoner in the cell, Abel Makhubela, who features
prominently in what is to follow.
[3] The three appellants followed the
court orderly back to the holding cell. Makhubela was already in the
cell. As the orderly unlocked
the gate of the holding cell for the
three appellants to enter, he was overpowered, disarmed and fatally
wounded by a gunshot from
his own firearm. Other than the appellants,
Makhubela was the only witness to this incident.
[4] The three appellants departed from
the scene hastily, being separated in the process. Makhubela too left
the holding cell, apparently
to seek help. The first appellant, who
had been injured on his right arm by the same gunshot that caused the
death of the court orderly,
made his way down to the first floor
where he was apprehended by two police officers; appellant 2 left the
building and boarded a
taxi to Rustenburg; the third appellant who
was armed with the deceased orderly’s firearm, hid in one of the
courts overnight and
escaped from the building the following morning.
Appellants 2 and 3 were subsequently arrested.
[5] The
three appellants were indicted in the Pretoria High Court before
Motata AJ (as he then was) for the murder of the court orderly
(count
1), robbery of his firearm
1
(count 2), the unlawful possession of this firearm and the ammunition
inside it
2
(counts 3 and 4), and also of escaping from lawful custody
3
(count 5). Appellant 1 pleaded not guilty to all the charges;
appellant 2 pleaded guilty only to the charge of escaping from
custody. Appellant 3 pleaded guilty to all but the murder charge. At
the end of the trial the appellants were each convicted on the
murder, robbery and escaping from custody charges while appellant 3
was also convicted on counts 3 and 4. The trial court found that
they
had planned their escape, robbed the orderly of his firearm and then
fatally wounded him while escaping. It held that they had
acted with
a common purpose. The appellants were sentenced to separate terms of
life imprisonment on the murder and robbery counts
and to five years’
imprisonment for escaping from custody. Appellant 3 received an
additional sentence of five years’ imprisonment
on counts 3 and 4,
which were taken together for the purpose of sentence. The three
appellants each received an effective sentence
of life imprisonment.
They now appeal against their convictions and sentences with leave of
the trial court.
[6] The convictions of the appellants
were based squarely on the testimony of Makhubela. Understandably,
the thrust of the appellants’
attack against their convictions is
directed at his evidence. According to Makhubela, appellant 3
intimated his intention to escape
with appellants 1 and 2 before they
were taken back to court. He invited Makhubela and another
awaiting-trial prisoner to join them.
They did not respond to his
invitation and there was no further discussion on the matter. This is
not disputed.
[7] Makhubela testified about the
incident in question. His version is as follows: when the orderly
unlocked the gate of the cell
so that the appellants could enter,
appellant 1 who was immediately behind the orderly, gripped the
orderly around his neck with
his left arm whilst his right hand
tightened around his abdominal area. At the same time, appellant 2
reached for the orderly’s
lower legs and tugged at them causing him
to lose his balance and keel over. This caused appellant 1 to drop to
a kneeling position
as he held on to the top half of the orderly’s
body. Simultaneously, appellant 3 reached for the firearm in the
orderly’s holster
on his right hip and grabbed it with both his
hands. At this point, as the orderly wrestled to free himself from
the clutches of
appellants 1 and 2, appellant 1 uttered the word
‘
skiet
’ (as translated). In response, appellant 3 cocked
the weapon and, whilst bending over the struggling orderly, fired a
single shot
at him. The bullet entered his abdominal area, after
penetrating appellant 1’s right arm whilst he was holding the
orderly in a
grip. The three appellants left the scene hurriedly
through court 8. Immediately thereafter Makhubela left the unlocked
holding cell
and entered court 7 where he informed someone about what
had just transpired. He then proceeded down to the first floor where
he
encountered two police officers. Shortly thereafter he saw
appellant 1 walking towards them. He pointed at appellant 1 as being
one
of those who had been involved in this incident whereupon the
police arrested the appellant.
[8] Appellant 1 presented a completely
different version of the incident. He testified that as the orderly
unlocked the gate of the
cell, appellant 3 pushed the orderly on to
him causing both of them to fall over. At that moment, appellant 2
disappeared. As they
were falling, appellant 3 grabbed the orderly’s
firearm, cocked it and pointed it at the orderly. Appellant 1 raised
his right
hand and implored appellant 3 three times not to shoot, but
to no avail. Appellant 3 discharged the firearm injuring appellant 1
on his right arm and killing the orderly. According to appellant 1,
he then fled through court 8. He proceeded to court 7 to look
for
help, but no one was present there. He then took the elevator to the
first floor where he saw Makhubela and two police officers,
one of
whom was Sergeant Mokome. Mokome asked him how he had injured his
arm. He responded that he had been shot at court 7. This
was denied
by Makome who testified that appellant 1 told him that he had been
injured by the door of the court. Mokome’s evidence
is destructive
of appellant 1’s denial that he did not intend to escape.
[9] On
appellant 2’s version, which was corroborated by appellant 1, he
played no part in the events that led to the orderly’s
death. He
testified that as the orderly unlocked the gate of the holding cell,
he heard the orderly make the exclamatory sound: ‘Yo!’
As he
turned, he noticed the orderly, and appellant 1, falling down. At the
same time, he observed appellant 3 reaching for
the orderly’s
firearm. At this point, appellant 2 left through court 8. Because
there was no one there he returned to court 7 where
he met Scheepers.
Before he could say anything to Scheepers they heard a gunshot. He
then told Scheepers what had occurred. This
caused Scheepers to
depart hastily. Appellant 2 first followed Scheepers for a while but
then ran away and boarded a taxi to Rustenburg.
He was arrested five
days later.
[10] Scheepers was called to testify
in support of appellant 2’s version. His testimony however gave
appellant 2 no comfort. He
testified that he was standing in the
corridor outside court 7 when he was told that the orderly had been
shot. Immediately after
this, he saw appellants 2 and 3 standing in
the corridor about 20 metres away. They were both gesticulating. He
observed that one
of appellant 3’s hands was behind his back. He
was afraid and hurried away to find the magistrate. Scheepers’
evidence is therefore
destructive of appellant 2’s version that he
had been talking to Scheepers at the time the gunshot was fired,
when, clearly according
to Scheepers, he had not. This was, quite
correctly, conceded by counsel who appeared on his behalf.
[11] Appellant 3 testified that they
had discussed escaping about six months before the incident. But,
appellant 2 had not been interested
as he had been granted bail. On
19 May, they agreed on a plan to escape whilst in the holding cell
before they went to court. The
plan was that appellant 1 would
strangle the orderly while he and appellant 2 would take his weapon
and then lock him up in the cell.
When they returned to the holding
cell later that day, appellant 1 grabbed the orderly around his neck
as he was unlocking the gate
of the cell. He began to wrestle with
the orderly for the firearm. At that stage, appellant 2 ran away. In
the process of struggling
to seize the firearm from the orderly, the
firearm was accidentally discharged, but he was not aware at the time
that the orderly
had been fatally wounded. He ran through court 6 and
hid in another court overnight. The following morning he escaped. He
subsequently
gave the firearm to one Nicolaas Setlhabelo for
safekeeping. In return Setlhabelo gave him R200.
[12] As mentioned earlier, the State’s
case was based on Makhubela’s testimony of his observation of the
incident. His evidence
was criticised by the appellants mainly on the
basis that according to his version, the orderly had been shot from
the front, through
his abdomen while on the undisputed medical
evidence the bullet had entered him from behind. What also counts
against him, counsel
for the appellants contended, is that when
confronted in cross-examination with the fact that his evidence was
irreconcilable with
the medical findings, he obstinately persisted in
his version.
[13] It is apparent, on any version,
that as the orderly was overpowered, a struggle ensued. It is most
likely that, in the process,
the orderly’s body would have turned
as the gunshot was being fired and that Makhubela, might not have
observed this. His persistence
that the orderly had been shot from
the front must therefore be considered in this light. But the fact
that he has been shown to
have been fallible in this regard does not,
in itself, justify the negation of his evidence as a whole, although
it does, of course,
sound a note of caution.
[14] With regard to his evidence as a
whole there was no general attack on the quality of his testimony.
Nor could there have been.
He maintained his version despite
searching cross-examination from counsel for each of the appellants.
And he had no demonstrable
interest or bias against the appellants.
There are four aspects of his evidence which, I think, are directly
relevant. The first
is whether there was a prior plan to escape; the
second, whether appellant 3 cocked the firearm before firing, the
third relates
to appellant 2’s involvement in the incident and the
fourth whether appellant 1 uttered the word ‘
skiet
’. I
deal with each in turn.
[15] As to the first issue: it is
inherently probable that the escape would have been preceded by some
discussion and planning. This
probability is underscored by the way
in which the plan was eventually carried out. Makhabela’s evidence
of the discussion in the
cell concerning the planned escape was
undeniably truthful. As to the second issue, Makhubela is
corroborated by appellant 1. Moreover,
he is supported by the
evidence of Mokome to the effect that the practice at the court was
that the firearms of the court orderlies
were never cocked and that
every morning, including the morning of the incident, the deceased
orderly participated in a parade where
all firearms were checked to
ensure that they were in proper working order. As to the third issue
I find appellant 2’s version
inherently improbable. Furthermore, he
is contradicted in material respects by Scheepers who was his own
witness. As to the final
issue, no reason has been suggested, and I
can think of none, why Makhubela would have fabricated this
incriminating evidence against
appellant 1. Likewise, I can think of
no reason why, in the circumstances, he would have been mistaken on
this aspect.
[16] Other than the evidence by
appellant 3 on the plan to escape, there is no evidence that this
involved murder. There can be no
doubt that it included the forceful
dispossession of the orderly’s firearm. Each of the appellants was
therefore not only properly
convicted of escaping from lawful
custody, but also of robbery.
4
Appellant 3 cocked the firearm, aimed it at the orderly and fired. He
was therefore correctly convicted of murder on the basis of
a direct
intention to kill the orderly.
[17] Appellant’s 1 and 2 were found
guilty of murder on the basis that they shared a common purpose with
appellant 3. The evidence
against appellant 1, that he uttered the
word ‘
skiet
’ as appellant 3 cocked the firearm, which I
found to be true, in my view constitutes sufficient proof that he
shared a common purpose
with appellant 3 – which might have been
formed on the spur of the moment – to cause the death of the
orderly. He too, was therefore
correctly convicted of murder.
[18] All that appellant 2 did,
however, was to grab hold of the orderly’s legs as the appellants
overpowered him. This act, submitted
counsel for the State, was
sufficient to warrant his conviction on the charge of murder. By
participating in the plan to escape,
which involved the forceful
dispossession of the orderly’s firearm, so it was contended, he
must have foreseen the possibility
that this could result in the
death of the orderly and reconciled himself to this possibility. He
would therefore, on the basis of
this argument, have had intention,
in the form of
dolus eventualis
, to murder. I disagree. It is
clear that the plan to escape involved disarming the orderly and
locking him up in the cell. But the
mere fact that the appellants
intended to rob the orderly in the execution of their plan to escape
does not warrant the inference
– as the only reasonable one –
that he subjectively foresaw the possibility of the shooting.
[19] I turn to consider the sentences
that were imposed by the trial court. Where an accused has been
convicted of robbery or of murder,
a court is obliged to impose a
mandatory sentence in accordance with
s 51
of the
Criminal Law
Amendment Act 105 of 1997
under certain circumstances, unless it is
satisfied that substantial and compelling circumstances exist that
justify the imposition
of lesser sentence.
5
There are two schedules to the Act that are applicable in the present
matter. The first is
Part I
of Schedule 2 under
s 51(1)
, and the
second,
Part II
of Schedule 2 under
s 51(2)
of the Act.
Part I
of
Schedule 2 prescribes a minimum sentence of life imprisonment in
respect of a murder conviction in certain circumstances. It reads
as
follows:
‘
The
obligatory life sentence is to be imposed for
murder
when
(a) it was planned or
premeditated;
(b) the
victim was –
(i) a law enforcement
officer performing his/her functions as such, whether on duty or not;
or
(ii) a
person who has given or was likely to give material evidence with
reference to any offence referred to in Schedule 1 to the
Criminal
Procedure Act, 1977
, at criminal proceedings in any court;
(c) the death of the
victim was caused by the accused in committing or attempting to
commit or after having committed or attempted
to commit one of the
following offences:
(i) Rape; or
(ii) robbery with
aggravating circumstances as defined in section 1 of the Criminal
Procedure Act, 1977 (Act 51 of 1977); or
(d) the offence was
committed by a person, group of persons or syndicate acting in the
execution or furtherance of a common purpose
or conspiracy.’
[20] Part II of Schedule 2 prescribes,
in the case of first offender, a minimum sentence of 15 years’
imprisonment for, amongst
others, the offence of robbery where there
are ‘aggravating circumstances’ present.
Section 1
of the
Criminal Procedure Act 51 of 1977
defines ‘aggravating
circumstances’ in relation to robbery to mean –
‘
(i) the
wielding of a fire-arm or any other dangerous weapon;
(ii) the infliction of
grievous bodily harm; or
(iii) a
threat to inflict grievous bodily harm,
by
the offender or an accomplice on the occasion when the offence is
committed, whether before or during or after the commission of
the
offence.’
In the light of the proved facts
aggravating circumstances were, in this case, present in respect of
the robbery. This appeal is therefore
to be determined on this basis.
[21] I can find no misdirection by the
trial court in respect of the imposition of the prescribed sentence
of life imprisonment for
their murder convictions.
Part I
of
Schedule 2 obliges the court to impose the mandatory sentence of
life imprisonment if any one of the circumstances enumerated
in this
Schedule is present when a murder is committed. In the present matter
there were three such circumstances present; a law
enforcement
officer was the victim, the death of the victim was caused by the
accused in committing the offence of robbery with aggravating
circumstances and the offence was committed in the execution of a
common purpose. However it is apparent that the trial court erred
in
imposing separate sentences of life imprisonment on the two
appellants in respect of the robbery charge. The prescribed sentence
for robbery as mentioned above is 15 years’ imprisonment for a
first offender. Both appellants 1 and 3 were first offenders at
the
time of the commission of these offences. Appellants 1 and 3 should
therefore have been sentenced to life imprisonment for the
murder,
and 15 years’ imprisonment for the robbery.
[22] Appellant 2, as I have found, was
incorrectly convicted on the charge of murder. His sentence on this
count therefore falls away.
In addition to having been convicted of
escaping from lawful custody, he should have been convicted only of
robbery with aggravating
circumstances. As mentioned above, as a
first offender, the prescribed minimum sentence is fifteen years’
imprisonment. However
this sentence may be departed from if
substantial and compelling circumstances exist which justify the
imposition of a lesser sentence.
(Note 5 above.)
[23] Appellant 2 was a young man of
twenty one when he was arrested for the first time on 3 January 1997.
He had been in custody for
almost one and a half years before this
incident occurred and never in trouble with the law before this. The
evidence against him
on the carjacking charge was such that he had no
case to answer. He was so advised by his attorney when the
application for his discharge
was made in terms of
s 174
of the
Criminal Procedure Act 51 of 1977
on the day of the incident. His
expectation therefore was that he would be released. The learned
magistrate was, however, unable
to deliver a judgment on the
discharge application on that day. Instead he postponed the trial,
including the decision on the discharge
application for three months,
to the 18
th
of August. His decision, later that day, to
reduce the appellant’s bail from R4 000 to R2 000 would have given
the appellant no
comfort as the reduced amount was also unaffordable.
He was vulnerable to the suggestion by his co-accused that they
should escape.
In the event, the appellant was discharged three
months later, but too late to avoid the tragic consequences that
followed.
[24] After
he had been rearrested, he spent another one and a half years in
custody before his trial was finalised. In deciding what
an
appropriate sentence should be in his case, this and the earlier
period must be taken into account. These circumstances are in
my view
sufficiently substantial and compelling to justify the imposition of
a lesser sentence than the prescribed 15 years’ imprisonment.
[25] In my view an appropriate
sentence for the robbery is 10 years’ imprisonment of which
two years should be served concurrently
with the sentence imposed for
escaping from custody.
[26] In the result the appeal is
successful only to the extent reflected in the order that follows:
26.1 The convictions of appellants 1
and 3 on the charges of escaping from lawful custody (count 5) and of
murder (count 1) and the
related sentences are confirmed;
26.2 The convictions on the charge of
robbery in respect of appellants 1 and 3 are confirmed, but the
sentences of life imprisonment
that were imposed are set aside and
replaced with a sentence of 15 years’ imprisonment;
26.3 The conviction and sentence
imposed on appellant 3 in respect of counts 3 and 4 (the unlawful
possession of firearms and ammunition)
are confirmed;
26.4 The conviction of appellant 2 on
the charge of murder (count 1) and the sentence of life
imprisonment that was imposed is
set aside;
26.5 The
conviction and sentence imposed on appellant 2 in respect of the
charge of escaping from lawful custody (count 5) is confirmed;
26.6 The conviction of appellant 2 on
the count of robbery (count 2) is confirmed, but the sentence of
life imprisonment is set
aside and substituted by a sentence of 10
years’ imprisonment. It is ordered that two years of this sentence
be served concurrently
with the sentence of five years’
imprisonment that was imposed in respect of charge of escaping from
lawful custody and the sentence
is antedated to 10 December
1999.
___________
A
CACHALIA
ACTING
JUDGE OF APPEAL
CONCUR:
NAVSA
JA
BRAND
JA
1
Robbery
with aggravating circumstances as contemplated in
s 1
of the
Criminal Procedure Act 51 of 1977
.
2
In
contravention of ss 2 and 36 of the Arms and Ammunition Act 75 of
1969.
3
In
contravention of s 48(1) of the Correctional Services Act 8 of 1959.
4
See
S v Salmans
2006 (1) SACR 333
(C) at 340d-f where it was held
that any force applied to the person at a victim, however slight,
was sufficient to constitute
robbery. The case involved the robbery
of a cellphone.
5
Section
51(3)(a). See
S v Malgas
2001 (1) SACR 469
(SCA)
(2001 (2)
SA 1222
(SCA)) on how a court should conduct an enquiry as to
whether substantial and compelling circumstances are present.