Brief Summary

Criminal Law — Murder — Intent — Appellant convicted of murder alongside co-accused for the unlawful killing of the deceased, Moeketsi Maine, during a community attack. Appellant and co-accused armed with weapons, assaulted the deceased before and after dragging him into the street, where further violence ensued. Appellant's alibi was rejected by the trial court, which found the evidence of state witnesses credible and established a common purpose among the accused. Appeal against conviction dismissed as the court upheld the finding of intent to kill.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an appeal to the Free State High Court, Bloemfontein, against both conviction and sentence for murder. The appellant, Mpane Joel Leeto (accused 3 at trial), appealed against the judgment of the trial court (the court a quo), in which he and two co-accused were convicted of murdering Moeketsi Maine (the deceased) and each sentenced to 15 years’ imprisonment.

The respondent was the State. At trial, the appellant and his co-accused were legally represented, pleaded not guilty, and elected to provide no plea explanation. After conviction and sentence, the appellant (together with accused 2) sought leave to appeal in the trial court, which was refused. A further petition was then lodged to the High Court. The petition succeeded only in respect of the appellant, who was granted leave to appeal against both conviction and sentence.

The dispute concerned the appellant’s criminal liability for the deceased’s death arising from a community attack in which the deceased was assaulted and ultimately killed, and whether the appellant’s conduct and state of mind, considered with the conduct of others, justified a conviction for murder on a common purpose basis. A further issue was whether the sentence imposed was open to appellate interference, given the minimum sentence regime applicable to the conviction.

2. Material Facts

The State’s case, accepted by the trial court and treated as the foundation for the appeal court’s factual analysis, was that on the evening of 12 May 2007 the deceased ran into his family home at approximately 20h30, urging that the police be called because people were on their way. He fled into a bedroom. At the time, the deceased’s brother, Mpamo Aaron Maine (Aaron), was at home with his wife and their father, Jim Jeremiah Maine (Jeremiah).

A crowd was present in the yard and in the street, and doors and windows were broken. After the kitchen door had been forced open, accused 2 appeared, stating he was looking for the deceased (by his nickname). Shortly thereafter, the appellant arrived. According to the State witnesses, the appellant and accused 2 pushed Aaron and Jeremiah aside and entered the house. A group of community members also entered.

Inside the house, the appellant was armed with a sabre/spear-like weapon and used it to damage the ceiling. Accused 2 was also armed with a similar weapon. The appellant and accused 2 searched the rooms, entered the bedroom where the deceased was hiding, and then dragged him out while chopping him with their weapons. They continued dragging and assaulting the deceased through the house and out towards the street. Accused 1 was at the door and assisted the appellant and accused 2 in dragging the deceased into the street.

In the street, the deceased fell. Evidence indicated that accused 1 threw a large rock at the deceased’s head. There was also evidence that members of the community threw stones at the deceased, and that a tyre was placed around the deceased’s neck, although the police arrived before it could be set alight. When police arrived, accused 1 remained present, whereas the appellant and accused 2 were no longer there.

The court treated as material and effectively undisputed that visibility was good throughout due to area lighting and electric lighting inside the house, and that the State witnesses were able to identify the appellant and co-accused. The State witnesses testified to their prior familiarity with the accused, and Jeremiah testified that he saw the appellant’s face clearly.

Medical evidence was admitted by agreement. In terms of admissions made under section 220 of the Criminal Procedure Act 51 of 1977, the post-mortem report recorded the cause of death as a head injury due to blunt force trauma. The report also described extensive injuries including a shattered skull, multiple lacerations and bruises, fractures of the jawbones with loss of teeth, and an injury to the right lung due to a stab wound.

The appellant and his co-accused raised alibi defences. The appellant’s version was that he was not at the deceased’s home at all and instead went (with a family member and his wife) to the home of his brother-in-law after hearing that the brother-in-law had been killed. The evidence suggested that the deceased had probably killed the appellant’s brother-in-law, which was advanced as the background reason for the community pursuing the deceased. The trial court rejected the alibi evidence as not reliably excluding involvement at the relevant time.

3. Legal Issues

The central legal questions were whether, on the facts accepted by the trial court, the State proved beyond reasonable doubt that the appellant was guilty of murder, in particular whether the appellant possessed the required intention (mens rea) to kill and whether the State had to prove the causal nexus between the appellant’s own acts and the deceased’s death given that multiple actors assaulted the deceased.

A related and decisive question was whether the appellant’s liability could properly be founded on common purpose, including common purpose not only among the three accused but also between them and the wider community participating in the violence. This required an evaluation of the application of legal standards to the established facts, rather than a pure question of law or an isolated factual dispute.

On sentence, the issue was whether the trial court’s imposition of 15 years’ imprisonment was open to interference on appeal, having regard to the operation of the minimum sentence provisions (which ordinarily prescribed life imprisonment for the category of murder involved) and the trial court’s finding of substantial and compelling circumstances justifying a lesser sentence. This implicated an appellate value judgment on sentence, bounded by established principles limiting interference.

4. Court’s Reasoning

On conviction, the appeal court approached the matter on the footing that the trial court had accepted the State witnesses as credible and reliable, and that the contradictions identified were not material enough, in the context of the totality of the evidence, to undermine the reliability of their accounts. The appeal court noted that the appellant’s alibi findings were not meaningfully challenged on appeal and that the trial court had provided reasoned grounds for concluding that the alibi evidence did not reliably exclude the appellant’s participation at the relevant time.

The appellant’s principal argument on appeal was that the State had not proved beyond reasonable doubt that he had the intention to kill, that the State had not proved a nexus between the appellant’s conduct and the deceased’s death, and that common purpose to kill was not proved beyond reasonable doubt. The appellant contended that, at most, liability should be for assault or assault with intent to cause grievous bodily harm.

The appeal court rejected these submissions by emphasising the nature and continuity of the attack as found on the evidence: the appellant was described as a major participant who, armed with a dangerous weapon, helped to locate the deceased, forcibly remove him from a place of refuge, and repeatedly chop him while dragging him from the house to the street. The court considered that this sustained armed violence, directed at the deceased in concert with another armed accused and within the context of a hostile crowd, supported the inference that the appellant associated himself with lethal violence.

The appeal court further reasoned that even if it was not established which individual act caused death, the appellant and accused 2 delivered the deceased to the community outside while knowing that further violence would follow, and they continued to identify with the ongoing conduct. The court treated the evidence as indicating that the deceased was probably already dead when he fell in the street; however, it held that even if death had not yet occurred at that stage, the appellant and his co-perpetrators had foreseen that the crowd would continue the assault and potentially kill the deceased.

On that basis, the court concluded that it was unnecessary for the State to prove beyond reasonable doubt which particular person or weapon inflicted the fatal injury. The essential finding was that the appellant and the others acted with common purpose, including common purpose with members of the community, and that the appellant did not disengage from that common purpose merely because he did not continue striking the deceased after the deceased fell. The court considered that standing by while the deceased was stoned, without taking steps to protect him or to dissociate, did not amount to withdrawal and was consistent only with continued association with the group’s violent objective.

On sentence, the court held that the murder conviction fell within the category attracting the prescribed minimum sentence of life imprisonment under the relevant minimum sentencing legislation, unless substantial and compelling circumstances justified a lesser sentence. It accepted that the trial court had already found such circumstances and had accordingly imposed 15 years’ imprisonment instead of life imprisonment.

The appeal court evaluated the appellant’s contention that the sentence remained disproportionately severe, including reliance on the background that the deceased had apparently killed the appellant’s relative. The court held that the trial court had properly weighed the appellant’s personal circumstances, the seriousness of the offence, and the interests of the community, and that the context did not justify the violent taking of the law into private hands. The court emphasised the need for deterrence in circumstances of community retaliation and concluded that the sentence imposed was neither shockingly inappropriate nor the product of a misdirection. It therefore found no basis for interference.

5. Outcome and Relief

The appeal court dismissed the appeal against conviction for murder. It also dismissed the appeal against sentence, leaving intact the sentence of 15 years’ imprisonment imposed by the trial court.

No separate costs order was recorded in the judgment.

Cases Cited

No prior cases were cited in the judgment.

Legislation Cited

Criminal Procedure Act 51 of 1977, section 220.

Criminal Law Amendment Act 105 of 1997, Schedule 2 (minimum sentence provisions applicable to murder).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the appellant’s participation in a sustained armed attack on the deceased, followed by the deceased being delivered into the hands of a hostile community while the appellant continued to associate with the violence, established liability for murder on the basis of common purpose. The court held that it was not necessary for the State to prove which participant inflicted the fatal injury where common purpose to kill, coupled with foresight of lethal consequences, was established.

The court further held that the sentence of 15 years’ imprisonment, imposed after the trial court found substantial and compelling circumstances to deviate from the prescribed life sentence, was not vitiated by misdirection and was not so severe as to warrant appellate interference.

LEGAL PRINCIPLES

Common purpose may found a murder conviction where an accused actively associates with a group attack and the evidence supports the inference that the accused intended the fatal result or at least foresaw that death would ensue and continued to associate with the conduct leading to death. In such circumstances, the State is not required to prove which participant delivered the fatal blow, provided the requirements for common purpose liability are met on the accepted facts.

An accused does not necessarily escape common purpose liability merely because he ceases to strike at a later stage of the assault; the question is whether the accused withdrew by clearly dissociating from the common purpose. Continued presence and passive observation, in circumstances where further violence is foreseeable and unfolds, may support an inference of continued association rather than withdrawal.

In sentencing for offences subject to the minimum sentence regime, life imprisonment is the prescribed sentence for the relevant category of murder unless substantial and compelling circumstances justify a lesser sentence. An appellate court will not interfere with sentence absent a material misdirection or where the sentence is disturbingly inappropriate in the circumstances, and deterrence may be emphasised where the offence reflects unlawful community retaliation and vigilantism.

Leeto v S (A75/2011) [2013] ZAFSHC 210 (21 November 2013)