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[2011] ZAFSHC 103
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S v January and Others (159/2011) [2011] ZAFSHC 103 (23 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 159/2011
In the review between:
THE STATE
and
BANNY JANUARY AND 3
OTHERS
CORAM:
VAN
DER MERWE, J
et
LEKALE, AJ
_______________________________________________________
JUDGMENT:
LEKALE, AJ
_______________________________________________________
DELIVERED ON:
23 JUNE 2011
_______________________________________________________
[1] On the 4
th
March 2011 the 4 accused persons were each sentenced to 30 months
imprisonment on three counts of assault with intent to cause
grievous
bodily harm and 6 months imprisonment each on a charge of theft by
the magistrate court at Botshabelo. The sentences in
respect of
accused number 2 were, however, wholly and conditionally suspended
for 3 years mainly because he was a minor.
[2] The matter,
eventually, served before Van der Merwe J on automatic review and he
directed the following query to the trial magistrate:
“
1. Is dit
bo redelike twyfel bewys dat beskuldigdes 2, 3, en 4 skuldig is aan
diefstal (aanklag 4)?
2. Verskaf asseblief redes vir die
vonnisse.”
[3] The learned
magistrate has since obliged and the court is indebted to her for,
inter alia
, the following detailed response with regard to
convictions:
“…
Dit
is duidelik uit die getuienis dat die beskuldigdes hulle daardie aand
vereenselwig het met die optrede van hulle medebeskuldigdes,
wat die
optrede ook al was. ‘n Persoon kan op grond van gemeenskaplike
opset ook aan diefstal skuldig bevind word en die
skuldigbevinding
van beskuldigdes 2, 3 en 4 op die diefstalaanklag, het dus op hierdie
basis geskied …”
[4] In respect of the
sentences the trial magistrate responds as follows, among others:
“
Weer
eens, as die beskuldigdes van openbare geweld aangekla sou gewees
het, was hulle optrede van ernstige omvang genoeg om, na
my mening,
‘n vonnis van drie jaar gevangenisstraf te regverdig selfs met
inagneming van al die ander faktore, waaronder
hulle persoonlike
omstandighede. Die aanklagte soos wel gestel, regverdig nie
noodwendig ‘n mindere vonnis nie. Ek het die
kumulatiewe
uitwerking van die vonnisse in ag geneem en daarom aanklag een tot
drie saamgeneem vir vonnisdoeleindes. …”
[5] It is correct, as
pointed out by the learned trial magistrate, that several accused
persons may, in an appropriate case, be
convicted on the basis of the
doctrine of common purpose where, in the absence of an agreement to
commit the offence in question,
they are shown, beyond reasonable
doubt, to have shared a common purpose aimed at the furtherance of a
crime with the actual perpetrator
or perpetrators. (See
S v
MGEDEZI AND OTHERS
1989 (1) SA 687
(A).
[6] In the present matter
the recorded direct evidence only implicates accused number 1 on the
theft charge. There is no direct
evidence to show that the other
three accused persons agreed with accused number 1 to steal
cigarettes and money from the tavern.
Their culpability on this
charge, therefore, depends on the presence of the following
pre-conditions among others:
they knew or were aware
of the theft;
they intended to make
common cause with accused no. 1 in the commission of theft;
they manifested common
purpose with accused no. 1 by some or other association with his
conduct;
they had the necessary
mens rea
with regard to theft. (See
S v MGEDEZI AND
OTHERS
supra
).
[7] There was nothing, in
our view, before the trial court suggesting that the three other
accused were aware that accused number
1 intended to and, in fact,
did steal from the tavern and that they actually associated
themselves with his conduct in that regard.
[8] In our judgment the
guilt of accused numbers 2, 3 and 4 on the theft charge has, with
respect, not been established beyond a
reasonable doubt. It is
reasonably possible that they were oblivious of the activities of
accused number 1 relating to theft and
that he was engaged in a
frolic of his own when he committed that crime.
[9] A perusal of the
record further reveals that the only evidence tendered in support of
charge number 3 emanated from the complainant
on that charge. Her
evidence, however, could not, in our view, sustain the allegation
that the accused threw stones at her insofar
as she testified that:
“
Toe ek
nou buite gaan kyk daarso ek het gesien dat nou hulle is besig om met
die bottels te gooi.”
(See page 50, lines 12 –
14 of the record.)
“
Where you
fired(?) or thrown with any objects during the incident? …
Nee.”
(See page 52, lines 5 and
6 of the record.)
[10] We are, thus, not
satisfied that the accused are guilty on charge number 3.
[11] It is patent, in our
judgment, from her response that the trial magistrate imposed the
sentences on the footing that the accused
should, in fact, have been
charged with and are actually guilty of public violence which, in her
view, warrants a heavier sentence.
As the magistrate correctly
acknowledges in her response, that was not the charge preferred
against the accused and the same is,
further, not a competent verdict
in terms of
section 266
of the
Criminal Procedure Act, no. 51 of 1977
as amended (“the CPA”).
[12] The sentences are,
in our opinion, not appropriate in the circumstances of the present
matter regard being had to the accused’s
respective personal
circumstances, among others.
[13] When all is said and
done we are not satisfied that the proceedings before the trial
magistrate were in accordance with justice.
ORDER:
[14] In the result, the
judgment of the trial court on the convictions and the sentences is
set aside and replaced with the following:
“
1.
The four accused are found guilty on charges 1 and 2 and not guilty
on charge number 3;
Accused
number 1 is further found guilty on charge number 4 while the other
accused are found not guilty on that charge;
Accused
numbers 1, 3 and 4 are sentenced to 12 months imprisonment on
charges 1 and 2 taken together and a further 6 months imprisonment
suspended for 3 years on condition that they are not found guilty of
assault which intent to do grievous bodily harm committed
during the
period of suspension;
Accused
number 2 is sentenced to 12 months imprisonment on charges 1 and 2
which sentence is wholly suspended for 3 years on condition
that he
is not found guilty of assault with intent to cause grievous bodily
harm committed during the period of suspension;
Accused
number 1 is further sentenced to 3 months imprisonment on charge
number 4.”
[15] The above sentences
are antedated to run with effect from the 4
th
March 2011.
_______________
L. J. LEKALE, AJ
I concur.
_________________________
C. H. G. VAN DER
MERWE, J
/eb