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[2011] ZAECMHC 5
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Mzwempi v S (2011 (2) SACR 237 (ECM)) [2011] ZAECMHC 5; 284/04 (28 April 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE HIGH COURT : MTHATHA)
CASE NO. 284/04
Date heard: 17/09/2010
Date delivered: 28 /04/20/11
REPORTABLE
In the matter between:
ZINGELEZA MZWEMPI
….................................................................
Appellant
and
THE STATE
….....................................................................................
Respondent
JUDGMENT
ALKEMA J
[1] One of the archaic remnants of tribal life in the
deep rural areas of South Africa is faction fighting. Reminiscent of
the massacre
of the McDonald clan by the Campbells in Glencoe,
Scotland, during the night of 13 February 1692, the Manduzini clan
attacked the
Makhwaleni clan at Lusikisiki before sunrise early the
morning of 3 October 2000.
[2] On the version of the McDonalds, the Campbell clan
arrived at their village, Glencoe, earlier that evening. Masquerading
as
peaceful travelers and capitalizing on the misguided hospitality
of the McDonalds, they occupied the latter’s homes for the
night. At the given hour and whilst their hosts were asleep, the
Campbells massacred almost the entire McDonald clan. (On the version
of the Campbells, they were simply giving effect to the order from
King William to “…
fall upon the rebels, the
McDonalds of Glencoe, and put all to the sword, under 70.)
(Prologue:
The Glencoe song))
[3] The Manduzini, sometimes referred to by the
Makhwaleni as “
Nombola’s”
(meaning the
“
illiterate people”
), used less stealth. They
announced their attack before sunrise on 3 October 2000 by blowing on
horns, firing shots in the air
and shouting war cries. The Campbells
used knives and swords; the Manduzini used rifles, shotguns and
spears. The McDonalds were
massacred in their sleep; the Makhwaleni
fled their huts and ran into the bush, followed by their assailants.
[4] It is not known whether the Makhwaleni fled in one
group, or whether they broke up in groups and scattered in different
directions.
The impression I get from a reading of the record is that
they scattered in different directions, some being followed and
others
not.
[5] In the course of the next few hours, five of the
Makhwaleni were killed, seven were severely wounded, and twenty eight
of their
huts were burnt down. Four accused from the Manduzini
attacking force were duly charged with five counts of murder, seven
counts
of attempted murder and twenty eight counts of arson. The
trial eventually started on 8 April 2006 before the High Court,
sitting
as a circuit court in Bizana, and presided over by Tshiki AJ
(as he then was).
[6] Based on the doctrine of common purpose, all the
accused were found guilty as charged. Each accused was sentenced to
life imprisonment
in respect of each count of murder; ten years
imprisonment in respect of each count of attempted murder; and five
years imprisonment
in respect of each count of arson. The court
ordered all the counts to run concurrently with the sentence of life
imprisonment
imposed in respect of the murder counts.
[7] The accused applied for and were granted leave to
appeal to the Full Bench of this division. Only accused No. 4
prosecuted the
appeal. The others abandoned their appeal. I will
refer to accused No.4 as the appellant in this judgment. His appeal
is against
conviction only. This is the judgment on appeal.
[8] The facts of the case are relatively
straight-forward and do not present any difficulties. As always, the
difficulty lies with
the application of the facts to the legal
principles. The broad issue in this appeal concerns the proper
approach to the application
of the common purpose doctrine on the
proven facts. The narrow issue is more daunting and worthy of early
identification. It is
entirely a legal issue. The background thereto
is the following:
[9] The leading cases on the subject of common purpose
remain the judgments of Botha JA in
S v Safatsa and Others
1988
(1) SA 868
(AD) and
S v Mgedezi and Others
1989 (1) SA 687
(AD). To avoid repetition and for the sake of convenience I will in
the course of this judgment refer to the approach by the Appellate
Division (as it was then known) in the aforesaid two judgments simply
as the
Safatsa/Mgedezi
rule.
[10] As I will hopefully demonstrate in the course of
this judgment, the carefully constructed jurisprudence in
Safatsa/Mgedezi
was disturbed in material respects by a
subsequent judgment of the same Court slightly one year later in
S
v Nzo and Another
1990 (3) SA 1
(AD). Again, to avoid repetition,
I will refer to this judgment simply as
Nzo.
For the reasons I
will attempt to explain,
Nzo
extended the scope of liability
under the
Safatsa/Mgedezi
rule beyond recognition of the very
rules laid down in
Safatsa
(
supra
) and
Mgedezi
(
supra
).
[11] The rule in
Safatsa/Mgedezi
was
constitutionally challenged before the Supreme Court of Appeal in
S
v Thebus and Another
2002 (2) SACR 566
(SCA). It was held to pass
constitutional muster and one year later the judgment was confirmed
by the Constitutional Court in
S v Thebus and Another
[2003] ZACC 12
;
2003 (2)
SACR 319
(CC). Paradoxically, no reference whatsoever is made to
Nzo
in either the Supreme Court of Appeal decision of
Thebus
(SCA)
or in the Constitutional Court judgment of
Thebus
(CC).
(Hereinafter referred to as
Thebus
(SCA) and
Thebus
(CC)
respectively). By contrast, it is clear from both judgments that what
was considered in these cases was the constitutionality
of the
Safatsa/Mgedezi
rule. In this context
Thebus
(SCA)
refers at 578 para 28 to
S v Mgedezi
(
supra
) and
Thebus
(CC) refers throughout its judgment to both
S v Safatsa
(
supra
) and
S v Mgedezi
(
supra
).
[12] The constitutional approval of the rule in
Safatsa/Mgedezi
(
supra
) raises the question of how, if
at all, the
stare decisis
rule remains applicable to
Nzo
.
Whereas it is clear that the well defined scope of liability under
the common purpose doctrine as expressed in the
Safatsa/Mgedezi
rule has now been upheld in both the Supreme Court of Appeal and
in the Constitutional Court, has the extension of the rule as
expressed
in
Nzo
now, at least by implication, been
disapproved? Or does it still apply? Are the lower Courts free to
follow either the
Safatsa/Mgedezi
rule or the extended
application in
Nzo?
Or are the lower Courts by virtue of
stare
decisis
nevertheless obliged to follow
Nzo
where the facts
fit the case? These questions invite further reflection and
constitute the core issue in this appeal. But, first
the facts.
[13] The State case against the appellant rests on the
evidence of three witnesses. There is, of course, other evidence
implicating
the other accused, but such evidence is of little
relevance to the appellant, save that it clearly establishes a
pre-meditated
and revenge attack against the Makhwaleni on the given
day and time. The evidence implicating the appellant can be
summarized as
follows.
[14] The first State witness, Magilase, testified that
his two huts were burnt down on the day of the attack. He said he had
gone
to the village the previous day, where he overheard a
conversation between the appellant and his three companions. The
appellant
and one of his companions (identified as accused No. 3
during the trial) were known to him, the other two not. He heard
appellant
saying to his companions words to the effect that they (the
appellant and his companions) “
should not miss 4 o’clock
…,”
and that “
by 5 o’clock we should
be finished.”
[15] Magilase conceded that the words are meaningless,
but he explained that he understood the appellant to say that they
should
attack the Makhwaleni clan at 4am the following morning “…
to kill us …”
and that they should be finished by
5 am. He did not say, and nor was he asked by the prosecutor, why he
attributed such meaning
to the words. He did not explain the context
of the conversation. He did not elaborate any further or say that he
had any prior
knowledge or no knowledge at all concerning the pending
attack, or on what basis he believed the words referred to the
pending
attack. On the argument of Mr
Siyo
, who appeared for
the State, these issues are unimportant because, as a matter of
common cause fact, the attack did occur the following
morning at 4 am
or shortly thereafter.
[16] The argument, with respect, misses the point. As I
will point out later in this judgment when dealing with the legal
principles,
the issue is not so much whether or not the attack
occurred – this is common cause - but whether or not the
appellant was
party to a prior agreement to carry out the attack and
kill members of the Makhwaleni clan. The learned Judge
a quo
found
that the appellant was indeed a party to such prior agreement, and it
seems the appellant was convicted on this ground. The
factual basis
for such a finding is the conversation between the appellant and his
companions the day prior to the attack referred
to above. It is
convenient to dispose of this finding now.
[17] Because Magilase, in consequence of the above
conversation which he overheard, feared for his life, he decided not
to go back
to his home but rather to spend the night with his in-laws
in another locality. He returned the following morning after sunrise.
On his return the attack was over and he did not see anyone causing
violence or committing a crime. His two huts were burnt down.
Other
huts were also burnt down. He assisted in the recovery of bodies. He
did not see the appellant.
[18] The words uttered by the appellant to his
companions and mentioned above are equivocal in context. They could
mean, and/or
may have been intended to mean, innumerable things. They
may or may not even have referred to the pending attack. To even
begin
ascribing any meaningful purpose or intent to those words will
amount to baseless speculation. In short, an agreement (to which
the
appellant was a party) to attack the Makhwaleni clan cannot be
inferred from this conversation. Mr
Siyo
argued, however, that
there may be another basis upon which such an agreement may be
inferred.
[19] He submitted that the general incontrovertible
tenor of the evidence is that the attack was expected and did not
arise spontaneously.
The warring factions were in continuous feud
with one another, and the attack on the day in question was a revenge
attack, anticipated
by both factions. On this basis, Mr
Siyo
argued, it is an inescapable inference that the attack and its
strategy was pre-planned and agreed.
[20] Whilst I have no problem with the logic of the
above argument, the missing link is the absence of any evidence that
the appellant
was a party to such planning or agreement. As I will
show later in this judgment, a prior agreement to commit a crime may
invoke
the imputation of conduct committed by one of the parties to
the agreement which falls within their common design, to all the
other
contracting parties. Subject to proof of the other definitional
elements of the crime such as unlawfulness and
culpa
, criminal
liability may in these circumstances be established. The test, and
requirements, however, of criminal liability under
the common purpose
doctrine in the absence of proof of a prior agreement, as I hope to
demonstrate, is very different and more
restrictive. It is therefore
essential that before convicting under the common purpose doctrine on
the strength of a prior agreement,
the Court must be satisfied beyond
reasonable doubt that such a prior agreement was proved, and that the
accused was a party thereto.
[21] Our Courts are regularly faced with evidence of,
say, a pre-planned robbery or burglary. It is trite that a prior
agreement
may not necessarily be express but may be inferred from
surrounding circumstances. The facts constituting the surrounding
circumstances
from which the inferences are sought to be drawn must
nevertheless be proved beyond reasonable doubt. And in this case
there are
no facts proved from which an implied prior agreement
involving the appellant may be inferred. It is common cause that his
shotgun
was licensed and that he regularly used it for hunting
purposes. The inference that he spontaneously joined the attacking
force
whilst on a hunting venture, or that he simply joined the
attacking force without having been a party to any prior agreement to
do so cannot be reasonably excluded.
[22] The appellant’s liability under the common
purpose doctrine must therefore, in my view, be tested on grounds
other than
being a party to a prior agreement to commit the crimes. I
am therefore of the respectful view that no evidential basis exists
for a factual finding that appellant was a party to such a prior
agreement. In making such a finding, I am of the respectful view
that
the Court
a quo
had misdirected itself.
[23] The next question is whether, on the evidence
before the Court
a quo
, it was entitled to convict the
appellant on the other facts found proven. It is to this question I
now turn.
[24] The second State witness relied on by the
prosecution is one Sijeni, who also knows the appellant. He testified
that the pending
attack was well known to the Makhwaleni. Because
they expected the attack, most of them, if not all, did not sleep in
their huts
during the night of 2 and 3 October. He, Sijeni, slept
outside (“…
in the grass …”
). He
returned home shortly before sunrise to release his chickens. Whilst
busy, he heard a commotion and saw people from neighbouring
huts
shouting and running away, chased by a group armed with firearms.
Shots were fired. He joined those fleeing and ran.
[25] While fleeing they came across an old man by the
name of Mzikinya who was armed with a bush knife and dressed in white
overalls.
They were still being pursued and continued running. The
body of Mzikinya was subsequently found. He had been shot and his
body
placed in a hut which was burnt down.
[26] During the flight Sijeni had crossed the border of
the Makhwaleni into another location. He was with Zandisile Gagadu.
Whilst
crossing a rivulet they came across some elderly women. Sijeni
hid in the banks of the rivulet near the women.
[27] While hiding, he heard a voice saying “…
you should not hide because that would not be clever.”
He
recognized the voice as that of the appellant who was known to him.
The appellant had a peculiar hoarse voice. He looked and
saw the
appellant standing on the other side of the slope, approximately half
a kilometer away. The appellant was carrying “…
a big
firearm.”
He heard the appellant calling the other
pursuers, whereafter appellant turned and walked away. He did not see
him again.
[28] Sijeni testified that he did not see the appellant
firing a shot. He said that on his return he found his hut burnt
down, together
with a number of other huts. It is impossible to say
from the evidence how far and how long he fled before his encounter
with the
appellant. On his own evidence he had already crossed into
another location. The probabilities are overwhelming that he only
encountered
the appellant long after sunrise, and also long after the
other crimes of murder, attempted murder and acts of arson were
committed.
I will shortly revert to this issue.
[29] The third State witness, Gagadu, corroborated the
evidence of Sijeni in broad general terms. His evidence, as recorded,
is
disjointed and difficult to follow.
[30] It appears that he spent the night somewhere else,
and the morning of the attack he returned to his homestead. On
arrival he
found his home to be burnt down. He heard a whistle and a
horn being blown, and shots were being fired. He ran away. He
recognized
the appellant as one of the pursuers. He, the appellant,
was carrying “
a big gun.”
He fled and shots were
fired at them. He does not know who fired the shots.
[31] He crossed a rivulet and came across Sijeni. He
does not refer to the appellant when he crossed the rivulet with
Sijeni or
say if he saw the appellant at that stage. When he saw the
appellant for the first time, he (the appellant) was approximately
100
to 200 meters away from him. It is unclear precisely where and
when he saw the appellant for the first time. There is no evidence
that he saw the appellant engaging in any activity. He simply places
the appellant on the scene.
[32] The appellant testified in his own defence. In
short, his defence is simply a denial of the evidence of the three
State witnesses
mentioned above. He stated that he was at work as a
Security Guard near Lusikisiki on the day in question. He did not
participate
in the attack, and nor was he present when it occurred.
He admitted to owning a licensed pump-action shotgun which he used
for
hunting.
[33] The appellant called two witnesses in his defence.
The first did not contribute anything meaningful to the case, and the
second
confirmed that he (the appellant) was at work on 3 October
2000 where he, the witness, saw him.
[34] The learned trial Judge evaluated the evidence of
both State witnesses and the defence witnesses in his judgment. It
serves
no purpose to repeat or discuss the trial court’s
evaluation of the evidence. It suffices to say that the court
a
quo
recognized the shortcomings in both the State case and the
defence case. The learned trial Judge properly looked at the evidence
as a whole and had proper regard to the contradictions, the
probabilities, the demeanor of the witnesses, their credibility and
powers of observation, and the extent and nature of corroboration of
their evidence. It is trite that a court of appeal will not
interfere
with credibility and factual findings of the court below unless it
has misdirected itself in a material respect either
on the facts or
on the law.
[35] In the present case the learned trial Judge
accepted the evidence of the three State witnesses who placed the
appellant on
the scene, and rejected as false and unreliable the
evidence of the appellant and his two witnesses who said he did not
participate
in the attack. Again, it is unnecessary to refer to and
discuss the reasoning of the trial court in reaching the conclusions
which
it did. I am unable to fault the reasoning process, and in my
respectful view, the court
a quo
did not misdirect itself in
any material respect in arriving at these conclusions. The learned
trial Judge therefore found that
the appellant formed part of the
attacking force, and this appeal must be decided on such factual
basis.
[36] The question is whether those findings justify a
conviction of the appellant on the five counts of murder, seven
counts of
attempted murder and twenty eight counts of arson. The
facts upon which the appellant’s criminal liability must be
judged
may therefore be summarized as follows:
An attack by the Manduzini clan on the Makhwaleni clan
occurred during the early hours of 3 October 2000.
In the course of the attack five members of the
Makhwaleni were murdered, seven were severely wounded, and twenty
eight of their
huts or homesteads were burnt down.
The appellant was a member of the group of the
Manduzini clan who attacked the Makhwaleni clan.
During the attack, the appellant was armed with his
own, licensed shotgun.
The post-mortem reports show that the five deceased
died from both gunshot and bullet wounds. The inference that the
assailants
were armed with rifles, shotguns and handguns is
supported by the post-mortem reports and the general tenor of the
evidence.
The post-mortem report relating to Mzikinya, the old
man armed with the bush knife and dressed in white overalls who
Sijeni came
across during his flight, shows that he died only of
multiple pellet wounds.
Ballistic tests conducted on cartridges found at the
scene could not link appellant’s shotgun to any of the murders
and
there is no evidence whatsoever that he was the only attacker
that was armed with a shotgun.
There is no direct or even circumstantial evidence
specifically linking the appellant individually to any of the
particular crimes
except, of course, that he was an armed member of
the attacking force and that he made common purpose with its general
aims.
It is unclear from the evidence whether the Manduzini
at all times acted and moved in one group, or whether they broke up
in smaller
parties and scattered throughout the battlefield in
pursuance of the Makhwaleni. The overwhelming probabilities, as I
remarked
earlier, are that both groups broke up in smaller parties
and the circumstances under which each murder and other crimes were
committed differ in time, place and factual circumstances.
Notwithstanding Mr
Siyo’s
submissions to
the contrary, there is no evidence which shows beyond a reasonable
doubt that at the time the appellant was seen
by Sijeni and Gagadu
(outside the area of the Makhwaleni), all the crimes had not already
been committed. On the contrary, the
probabilities are that all the
acts of murder, attempted murder and arson had already been
completed when the appellant was observed
as testified by Sijeni and
Gagadu at the rivulet.
There is no credible evidence that the appellant was a
party to a prior agreement to commit any of the crimes.
There is no evidence that the smaller attacking force
of which the appellant was a member, and which pursued the State
witnesses
mentioned earlier, killed or attempted to kill any of the
fugitives, or that they committed any acts of arson, or that the
accused
individually actively assisted or associated himself with
any such other attacking force or forces (except, of course, that he
was part of the general main group of the Manduzini).
13. It will be naïve not to hold that the appellant
reasonably foresaw the possibility of death and or destruction of
property
in the course of the general attack, and I make such
finding.
[37] I now turn to the legal principles applicable, and
more particularly to the principles involving the common purpose
doctrine.
To place the doctrine in proper perspective and to read the
rule in
Safatsa/Mgedezi
and the judgments in
Nzo
and
Thebus (supra)
in their proper context, it is unavoidable, I
believe, to briefly refer to the history and nature of the common
purpose doctrine.
[38] The doctrine was unknown to Roman law, Roman-Dutch
law and the early common law of South Africa. It was introduced from
English
law to South African common law after the occupation by the
English of the Cape and the other South African territories during
the 19
th
century. One of the first leading cases on the
subject is
McKenzie v Van der Merwe
1917 (AD) 41. Although the
case dealt with delictual liability, Innes CJ declared at 45:
“
The delicts sued upon, if brought home to the
respondent, would involve criminal as well as civil liability: Now a
man may be guilty
of a crime in which he took no physical part and
rendered no assistance, if the perpetrator was in law his agent for
the purpose
… But then a
mandatum
sceleris
must be established ... .”
[39] As I will indicate later in this judgment, the
mandatum sceleris
today, cast in the form of a prior
agreement, plays a pivotal role in the modern common purpose doctrine
in South African criminal
law.
[40] The doctrine soon found its way into criminal law.
See
R v Garnsworthy and Others
1923 (WLD) 17 at 19;
R v
Duma and Another
1945 (AD) 410;
R v Mkize
1946 (AD) 197 at
205-206;
R v Shezi and Others
1948 (2) SA 119
(A).
[41] The application of the doctrine almost immediately
evoked severe criticism from leading academics; most notably from
Prof.
J.C. de Wet in De Wet en Swanepoel,
Strafreg
(1
st
Ed.) (1949). Conflicting judgments from both Provincial Divisions and
the Appellate Division (as it was then known) increased the
uncertainty. See, for instance,
R v Tsosane and Others
1951
(3) SA 405
(O);
S v Ngobozi
1972 (3) SA 476
(A);
S v
Williams en ’n ander
1980 (1) SA 60
(A) at 65E-F; and
S
v Maxaba en Andere
1981 (1) SA 1148
(A) at 1155E-G.
[42] The debate continued and produced a mass of legal
literature and divergent opinions and conflicting judgments. See, for
instance,
the later edition of J.C. de Wet (
supra
) (4
th
Ed.) (1985) pp.192 to 197. It serves no purpose to enter this debate
and indulge in jurisprudential philosophizing. Suffice it
to say that
during 1988 and 1989 the (then) Appellate Division produced the two
judgments in
Safatsa
(
supra
) and
Mgedezi
(
supra
)
which settled most of the issues and brought some calm to troubled
legal waters. Then came
Nzo
and the constitutional approval of
the rule in
Safatsa/Mgedezi
in
Thebus
(SCA)
and
Thebus
(CC) in the manner explained at the outset of this
judgment. However, as I will shortly indicate, the debate has not yet
been settled
entirely. The correctness of
Thebus
(CC) is
convincingly questioned by Jonathan Burchell,
Principles of
Criminal Law
, 3
rd
Edition, 2008 pp. 580-588.
[43] Before dealing with the rule in
Safatsa/Mgedezi
and
Nzo
, it is important to understand the reason for the
assimilation of the common purpose doctrine in South African law and
the mischief
it sought to remedy. The three judgments referred to
above can only be understood and interpreted, in my respectful view,
against
such background, which is briefly the following: The
traditional definitional elements of a crime under South African
common law
did not always, and in all circumstances, adequately
satisfy the quest for crime control and a just criminal system in an
increasingly
lawless society. The problem lay with the requirement of
causation.
[44]Absent the doctrine of common purpose, the South
African common law of criminal liability recognizes four separate and
distinct
elements or requirements, namely; (i) an act (
actus
reus
); (ii) which is unlawful (unlawfulness); (iii) causing the
crime (causation); and (iv) committed with the necessary intent or
culpa
(
mens rea
). The doctrine of common purpose
concerns only the element of causation.
[45] In many cases involving a consequence crime and
committed by a group of people such as, for instance, murder, it is
often very
difficult, if not impossible, to determine which offender
caused the death. If a victim is beaten to death by four offenders,
all
hitting him with knobkieries, it is often impossible to determine
which of the offenders delivered the fatal blow causing the death.
In
cases of this nature the element of causation is not proved beyond
reasonable doubt, and all four offenders must be acquitted.
This was
the injustice and mischief sought to overcome by the introduction of
the common purpose doctrine. See, for instance,
S v Madlala
1969 (2) AD 637
at 640F-649A.
[46] The object and purpose of the doctrine was
therefore to overcome an otherwise unjust result which offended the
legal convictions
of the community. It did so by removing the element
of causation from criminal liability and replacing it, in appropriate
circumstances,
with imputing the deed (
actus reus
) which
caused the death (or other crime) to all the co-perpetrators.
[47] That the doctrine is aimed solely at removing the
obstacle of proving causation and not any of the other requirement,
is clear
from the leading case of
Safatsa
(
supra
).
Having referred to a number of authorities, Botha JA said at 898A-B:
“
In my opinion these remarks constitute once
again a clear recognition of the principle that in cases of common
purpose the act of
one participant in causing the death of the
deceased is imputed, as a matter of law, to the other participants.”
[48] In regard to some judgments from the (then)
Appellate Division which still advocated the retention of the element
of causation
in criminal law, (i.e.
S v Williams and Another
1980
(1) SA 60
(A) per Joubert JA) Botha JA said in
Safatsa
(
supra
)
at 898D:
“
This remark
[proving
causation]
has given rise to the question
whether, in relation to cases of common purpose, some kind of causal
connection is required to be
proved between the conduct of a
particular participant in the common purpose and the death of the
deceased before a conviction
of murder can be justified in respect of
such a participant. In my view the clear answer is: No.”
[49] The Constitutional Court in
Thebus
(CC) held
that the doctrine passed constitutional muster notwithstanding the
abolition of causation as a requirement for criminal
liability. The
Court, per Moseneke J, said at 341, para [34] d-g:
“
In our law, ordinarily, in a consequence
crime, a causal
nexus
between the conduct of an accused and the
criminal consequence is a prerequisite for criminal liability. The
doctrine of common
purpose dispenses with the causation requirement.
Provided the accused actively associated with the conduct of the
perpetrators
in the group that caused the death and had the required
intention in respect of the unlawful consequence, the accused would
be
guilty of the offence. The principal object of the doctrine of
common purpose is to criminalise collective criminal conduct and
thus
to satisfy the social ‘need to control crime committed in the
course of joint enterprises’. The phenomenon of
serious crimes
committed by collective individuals, acting in concert, remains a
significant societal scourge. In consequence crimes
such as murder,
robbery, malicious damage to property and arson, it is often
difficult to prove that the act of each person or
of a particular
person in the group contributed causally to the criminal result. Such
a causal prerequisite for liability would
render nugatory and
ineffectual the object of the criminal norm of common purpose and
make prosecution of collaborative criminal
enterprise intractable and
ineffectual.”
[50] To return to liability under the common purpose
rule in circumstances where there is no prior agreement, I believe
the starting
point is the definition of common purpose. The best
known and often quoted definition comes from Jonathan Burchell,
Principles of Criminal Law
(
supra
) at 574 which reads
as follows:
“
Where two or more people agree to commit a
crime or actively associate in a joint unlawful enterprise, each will
be responsible
for the specific criminal conduct committed by one of
their number which falls within their common design.”
[51] The definition embodies two elements or stages. The
first stage refers to the conditions which must be fulfilled before
the
principle of imputation of conduct can operate; and the second
stage refers to the scope and extent of imputing the conduct of one
party to the others. The second stage, to repeat, only comes into
operation when the conditions of the first stage are fulfilled.
[52] The conditions in the first stage which trigger the
principle of imputation, are either a prior agreement or an active
association
in the joint venture. Any one of these conditions must
exist. On the facts of this case, a prior agreement was not proved.
The
question is therefore whether or not the appellant actively
associated himself with the aims of the attack on the Makhwaleni. The
answer to this question depends on the meaning and content which our
Courts, and in particular the Supreme Court of Appeal, have
given to
the concept of ‘active association’. Both
Safatsa
(
supra
) and
Mgedezi
(
supra
) deal with this
issue. In neither of these two cases was any reliance placed on a
prior agreement. It is, with respect, important
to bear this
distinction in mind.
[53] The second stage of the definition imputes conduct
to an accused
which falls within the common design or purpose
(my
emphasis). Conduct which falls within the common design seems to be
any or all conduct in the execution of the common design
or purpose.
In the case of a prior agreement therefore, all the parties thereto
will be held liable for the act of any one of their
members which
either falls within the common design or is executed in the course of
the implementation of the agreement (provided,
however, the other
definitional requirements such as
dolus
are also present.
[54] It follows that where a prior agreement is proved,
the accused is not required to be present at the scene where the
crime is
committed, and neither is he required to have actively
participated in the conduct which caused the crime. Provided that the
conduct
imputed to him falls within the common design or the
execution of the agreement, and that he had the necessary
mens rea
(either direct or
dolus eventualis
), he may be held liable
under the common purpose rule.
[55] The above principle usually operates in cases, for
instance, where a gang agrees to rob a bank or commit some other
crime.
A party to the agreement whose function it is to wait in a
second getaway car some five or ten kilometers away, will be equally
guilty of the offence of robbery under the common purpose doctrine
notwithstanding that he or she may not have been at the scene
where
the robbery was committed, or that he or she may not have physically
participated in the act of robbery. A classical example
of this type
of case is
S v Majosi and Others
1991 (2) SACR 532
(A).
[56] The imputation of conduct – any conduct which
falls within their common design – under the second stage must
not
be confused or conflated with the conduct which constitutes
active association as a condition precedent under the first stage. As
I will endeavour to demonstrate, the conduct in the former case seems
to be any conduct which falls within the wide and general
common
design. The conduct in the latter case (active association) seems to
be restricted to particular conduct and not to any
conduct. That was
the conduct considered in
Safatsa
(
supra
)
, Mgedezi
(
supra
) and
Nzo
(
supra
), and to which I now,
at long last, turn.
[57] In
Safatsa
(
supra
) (also known as the
Sharpville 6 case) the salient facts were these:
[58] Eight accused were charged with murder and
subversion under the (then) Internal Security Act. The charges
followed the murder
of one Dlamini, the Deputy Mayor of the town
council of Lekoa, on 3 September 1984. A mob of people of about 100
had attacked his
house, first by pelting it with stones and then by
hurling petrol bombs through the broken windows, thus setting the
house alight.
Dlamini’s car was removed from the garage, parked
in the street, turned on its side, and set on fire. As his house was
burning,
Dlamini fled from it to a neighbouring home. He was caught
by some members of the mob and was assaulted. Stones were thrown at
him and his head was battered with stones. He was dragged into the
street, petrol was poured over him and he was set alight. He
died.
[59] The eight accused were part of the attacking mob of
approximately 100. Their participation may be summarized as follows:
(1) Accused 1 was one of the persons who caught the
deceased when he fled his house. He wrestled with the deceased, and
was the
first who struck the deceased with a stone.
(2) Accused 2 was one of the mob who stoned the
deceased’s house. When the deceased fled his burning house, the
accused threw
stones at him which struck his back, presumably causing
him to fall and be caught by the other pursuers.
(3) Accused 3 was one of the small group of men who
caught the deceased as he fled his house. He wrestled him to the
ground and
disarmed him.
(4) Accused 4 was part of the crowd, carrying a placard.
She shouted repeatedly:
He is shooting at us, let us kill him”
(the deceased). When petrol was poured over the deceased a member
of the crowd objected to him being set alight. The accused slapped
this woman in the face, ostensibly to stop her from complaining.
(5) Accused No. 5 and 6 were part of the vanguard of the
crowd, but they were not seen to throw stones. Save for being present
and
part of the leaders of the vanguard, there was no evidence
against them of any active participation in any acts which
contributed
to the death of the deceased.
(6) Accused 7 was part of the stone-throwing mob. He
made petrol bombs, poured petrol over the kitchen door of the
deceased’s
house and set it alight. He assisted in pushing the
deceased’s car into the street.
(7) Accused 8 made petrol bombs which he handed to other
members of the mob with instructions to surround the house and set it
alight
[60] The court
a quo
found, which was confirmed
on appeal, that with the exception of accused no. 5 and 6 all other 6
accused “…
had actively associated themselves
with
the conduct of the mob, which was directed at the killing of the
deceased
.”
( at 893G) (my emphasis).
[61] It is clear, in my respectful view, that the
general tenor of the judgment of Botha JA is that the test for
imputing to the
accused the actions of the group is the active
association with the conduct which caused the deceased’s death.
At 901 H-I
the learned Judge of appeal states:
“…
there can be no doubt, in my
judgment, that the individual acts of each of the six accused
convicted of murder
manifested an
active association with the acts of the mob which caused the death of
the deceased.
” (my emphasis).
[62] It was also due to the absence of any evidence that
accused no. 5 and 6 had actively associated themselves with the acts
causing
the death, that they were acquitted.
[63] As is quite evident from the facts in
Safatsa
(
supra
), the participation of each accused in the death of
the deceased must be separately analyzed. If it cannot be said that a
particular
accused actively participated or associated him or herself
with the conduct which caused the death or other crime
,
then
the actions of those who caused the death cannot be imputed to the
particular accused and he must be acquitted.
[64] I now turn to consider the facts in
Mgedezi
(
supra
).
[65] In
Mgedezi
(
supra
) the trial court
found that members of a large mob had attached and killed the
deceased. The accused was part of the mob. The court
a quo
found that the accused foresaw the death of the deceased and
associated themselves with such consequences. However, there was no
evidence that any of the accused committed any act which was directly
and physically linked to the causing of the death of any
of the
deceased. (at 698 F-G).
[66] The Court of Appeal (again per Botha JA) held that
a view of the totality of the evidence cannot legitimately be used as
a
brush with which to tar each accused individually, nor as a means
of rejecting the defence versions
en masse
(at 703B). The
learned Judge of Appeal made the following remark at 703B-C:
“
A view of the totality of the defence cases
[of all the accused]
cannot legitimately be
used as a brush with which to tar each accused individually, nor as a
means of rejecting the defence versions
en
masse.
The global view taken by the
trial Court of the defence cases led it to draw two inferences: (a)
that each accused was present at
the scene (at room 12) and
participated in the execution of the threat against the mpimpi’s;
and (b) that the defences of
all of them were false beyond reasonable
doubt. With respect, as a matter of simple logic I consider both
inferences to be wholly
insupportable.”
[67] At 703E-F he said:
“
The trial Court erred by precluding itself
from performing its duty to consider the evidence of each accused
separately and individually,
to weigh up that evidence against the
particular evidence of the individual State witness or witnesses who
implicated that accused,
and upon that basis then to assess the
question whether that accused’s evidence could reasonably
possibly be true.”
[68] At 703H-704A he concluded:
“
The reference, in purely general terms, to
liability on the basis of common purpose, in para (3) of the above
quotation from the
judgment, cannot warrant an inference of liability
in respect of all the accused
en bloc.
The trial Court was obliged to
consider, in relation to each individual accused whose evidence could
properly be rejected as false,
the facts found proved by the State
evidence against that accused, in order to assess whether there was a
sufficient basis for
holding that accused liable on the ground of
active participation in the achievement of a common purpose. The
trial Court’s
failure to undertake this task again constituted
a serious misdirection.”
[69] It is quite evident from the above that the conduct
and activity of each individual accused in the participation of the
crime
must be considered. The general finding on the totality of the
evidence that an accused was merely present and formed part of the
crowd, without any evidence of his or her active participation in
events which resulted in the death or other crimes with which
he or
she is charged, is insufficient to warrant a finding of “
active
participation.”
[70] The requirement that in the absence of a prior
agreement the State must prove an active association with the events
which are
causally connected to the death, and that the accused must
have been present at the scene where these events occurred, appear
from
the following extract of the judgment in
Mgedezi
(
supra
)at 705E-I:
“
It would appear from the judgment of the trial
Judge (para (2) of the quotation given earlier) that the trial Court
might have based
its decision on a finding that there had been a
prior agreement between the accused to kill the mpimpi’s, i.e.
the team leaders.
There was, however, no evidence to substantiate
such a finding. The attack which resulted in the killing or wounding
of the team
leaders was confined to room 12 and its occupants.
Consequently any enquiry into common purpose must be directed at the
events
that occurred there. As far as accused No 6 is concerned,
there is nothing in the evidence to show that he had agreed that the
inmates of room 12 were to be assaulted. There is no suggestion of an
express agreement and there is no proof of an implied agreement.
As
to the latter, the acts that accused No 6 was proved to have
committed in the vicinity of blocks 4 and 5 do not give rise to
an
inference beyond reasonable doubt that he had agreed with any other
person that the occupants of room 12 were to be killed.
At the time
when, and at the place where, accused No 6 participated in the
activities of the group who were calling for mpimpi’s
to be
killed, those activities constituted no more than threats and
intimidation, which had not reached any stage of actual execution,
as
we know from what happened in room 108, and it would be too much of a
leap in time and place to infer from those events that
accused No 6
had agreed to the events that occurred at room 12.”
[71] The restrictive meaning of “
active
association”
is evidenced by the four requirements for
liability under common purpose as formulated in
Mgedezi
(
supra
)
at 705I-706C as follows:
“
In the absence of proof of a prior agreement,
accused No 6, who was not shown to have contributed causally to the
killing or wounding
of the occupants of room 12, can be held liable
for those events, on the basis of the decision in
S
v Sefatsa and Others
1988 (1) SA 868
(A), only if certain prerequisites are satisfied. In the first place,
he must have been present at the scene where the violence
was being
committed. Secondly, he must have been aware of the assault on the
inmates of room 12. Thirdly, he must have intended
to make common
cause with those who were actually perpetrating the assault.
Fourthly, he must have manifested his sharing of a
common purpose
with the perpetrators of the assault by himself performing some act
of association with the conduct of the others.
Fifthly, he must have
had the requisite
mens rea
;
so, in respect of the killing of the deceased, he must have intended
them to be killed, or he must have foreseen the
possibility of their being killed and performed his
own act of association with recklessness as to whether or not death
was to ensue.”
[72] I pause to remark that the fifth requirement of
mens rea
is a definitional element of any crime which must in
any event be proved, and is not a requirement of “
active
association.”
Only the first four requirements referred to
above are necessary to prove an “
active association”
in the crime under the doctrine of common purpose. The enquiry
into
dolus
is a separate and further enquiry.
[73] In
S v Thebus
(
supra
) the
Constitutional Court approved the approach in
Mgedezi
(
supra
).
The issue is put beyond any doubt by Moseneke J at 341e (para 34) as
follows:
“
Provided the accused actively associated with
the conduct of the perpetrators in the
group that caused the death
and
had the required intention in respect
of the unlawful consequence, the accused would be guilty of the
offence”
(my emphasis).
[74] The approach to adjudicate the actions of the
accused individually and not to paint his conduct with a collective
brush is
described by the Constitutional Court in
Thebus
(
supra
)
at 345, para [45] as follows:
“
[45] A collective approach to determining the
actual conduct or active association of an individual accused has
many evidentiary
pitfalls. The trial court must seek to determine, in
respect of each accused person, the location, timing, sequence,
duration,
frequency and nature of the conduct alleged to constitute
sufficient participation or active association and its relationship,
if any, to the criminal result and to all other prerequisites of
guilt. Whether or not active association has been appropriately
established will depend upon the factual context of each case.”
[75] This state of the law in respect of criminal
liability under the common purpose doctrine seems to have become
settled by the
rule and approach adopted in
Safatsa/Mgedezi.
The
salient features of the rule may perhaps be summarized as follows:
[76] First, a distinction needs to be drawn between
liability based on a prior agreement, and liability based on active
association.
On either basis, the conduct imputed to the accused is
the conduct by the participants in the execution of their joint
venture.
[77] Second, in the absence of a prior agreement, only
the active association of the accused in the particular events which
contributed
to or caused the crime, triggers the principle of
imputation in the manner described above. In this sense, liability
arising from
active association is much more restrictive. Such
association will depend on the factual context of each case and must
be decided
with regard to the individual actions of each accused. In
the assessment of the individual’s actions of each accused, the
first four requirements for active association as set out in
Mgedezi
(
supra
) at 705I-706B and referred to above must be
satisfied.
[78] Third, the other definitional elements of the
crime, such as unlawfulness and culpa, must be present.
[79] The jurisprudential objections to liability under
the common purpose doctrine was to a great extent met by the approach
and
rule in
Safatsa/Mgedezi,
in that the definitional element
of causation was replaced with active association with the conduct
which caused the death or other
crime. The causal element thus
remained between the conduct and the death. The
actus reus
constitute either the conclusion of the prior agreement, or the
active association. Either of these events trigger the imputation
principle. In this sense the invasion of common purpose liability
into the common law requirement of causation is limited and serves
the need for criminal expediency. This seems to have been the state
of our law for one year.
[80] But then came the judgment in
Nzo
. The facts
in
Nzo
were the following:
[81] During the relevant time (early eighties of the
20
th
century) the armed struggle waged by the then banned
African National Congress (the ANC) was at its height. The ANC
infiltrated
the country from,
inter alia,
Lesotho. A small
group (termed as “terrorists” in the law reports) had
been sent to operate in Port Elizabeth. Their
targets were public
buildings, such as the Magistrate’s Court building,
Administration Board buildings, shopping centres
and railway tracks
which were all damaged by explosions.
[82] A fuel depot was selected as the next target, but
before it could be attacked certain incidents occurred which caused a
dramatic
turn of events. Mr. and Mrs. Tshiwula operated a so-called
safe house which harboured part of the group. Mrs Tshiwula objected
to the continued harbouring of the “
terrorists”
and threatened to reveal their activities. One of the group members,
Joe, threatened to shoot her in order to protect the safety
of the
group. The threat was overheard by Nzo, the appellant.
[83] During the morning of 8 May 1983 the appellant,
Nzo, passed through Aliwal North
en route
to Lesotho. He was
accosted by members of the local security branch and found to be in
possession of a false identity document.
He was arrested, detained
and questioned. It seems he made full disclosure and gave the
security police all the information they
required. During the evening
of 8 May 1983, whilst Nzo was still in custody, Joe murdered Mrs
Tshiwula. There was no evidence that
Nzo was aware of the murder or
that he knew it was going to be committed.
[84] Nzo was nevertheless charged,
inter alia
,
with the murder of Mrs Tshiwula. He and his co-accused were both
convicted by the trial court. It was found by the trial court
that
Nzo and the Second Appellant could not be convicted for the murder as
co-perpetrators since they had no part in it (Nzo was
under
detention). They were, however, both convicted on the basis of common
purpose. The conviction was based on the finding that
Nzo and the
Second Appellant foresaw the possibility of the murder and continued
to associate in the common purpose of the group.
[85] The court
a quo
found a common purpose “…
on the part of the terrorists… to commit acts of sabotage,
in the execution of which design the possibility of certain
categories
of fatality must have been foreseen and, by inference,
were foreseen by the participants to that common purpose”
(
Nzo
(
supra
) at 4G-H).
[86] The court
a quo
held, as reported at 5G-H:
“
To sum up, we find beyond reasonable doubt
that accused No 1 must, on all the evidence and at all material times
from 10 April onwards,
have foreseen the killing of the deceased
possibly occurring in the prosecution of the common purpose. In other
words, he must
have foreseen the possibility that it might become
necessary for Joe to kill her in order to preserve the security and
success
of the mission on which they were engaged. With that
foresight, and reckless as to whether such death occurred, he
continued to
associate in the common purpose right up to the time of
his arrest eight hours before the murder….”
[87] The above reasoning and findings of the court
a
quo
were confirmed on appeal to the Appellate Division. In
argument, and undoubtedly following the reasoning process of the rule
in
Safatsa
/
Mgedezi
, appellant’s counsel argued as
follows: (I can do no better than to repeat the summary of the
learned Judge of Appeal at
7D-G).
“
The ANC is an organisation with thousands of
members in this country and several others. Some of its members are
known to have committed
a multitude of crimes in the execution and
furtherance of its objectives. It is foreseeable that they might also
do so in future.
But, since liability cannot conceivably be imputed
to every member for every foreseen crime so committed by all other
members,
the imputed liability of a member is limited to crimes with
which he specifically associates himself. This is so because
liability
on the basis of the doctrine of common purpose arises from
the accused’s association with a particular crime and is not
imputed
to him where he associates himself, not with a particular
crime, but with a criminal campaign involving the commission of a
series
of crimes. In such a case he can be convicted, apart from
crimes in which he personally participated, only of those with which
he specifically associated himself. And in the present case, although
the appellants were actively involved in the campaign, there
is no
evidence that they associated themselves with Mrs Tshiwula’s
murder.”
[88] I must confess that on my reading and understanding
of the rule in
Safatsa/Mgedezi
(
supra
)
,
the
above argument neatly and precisely encapsulates the rule.
[89] However, Hefer JA, writing also on behalf of
Nestadt JA, was unable to agree. He regarded the argument as “…
shrouded in a veil of irrelevant matter.”
(at 7G). The
learned Judge of Appeal found that the group, of which the appellants
were members, functioned as a cohesive unit in
which each performed
his own allotted task. Their design was to wage a localized campaign
of terror and destruction; and it was
in the furtherance of this
design and for the preservation of the unit and the protection of
each of its members that the murder
was committed. In view of their
continuing participation in the execution of the common design,
despite their foresight of the
possibility of murder, they are liable
for every foreseen offence committed by any of them in the execution
of the design (
Nzo
(
supra
) at 7 H-J).
[90] As authority for the basis of liability, the Court
of Appeal relied on
S v Madlala
1969 (2) SA 637
(A) at 640H to
the effect that the parties to a common purpose are liable for every
foreseen offence committed by any of them in
the execution of the
design if they persist, reckless as to its possible occurrence (at 7
C-D). Interestingly, the judgment in
Nzo
does not refer to or
mention either
Safatsa
(
supra
) or
Mgedezi
(
supra
).
[91] The minority judgment in
Nzo
by Steyn JA
embraced the appellant’s argument referred to above “
as
relevant and to the point.”
(at 16G-H). Steyn JA referred
to the rule in
Safatsa/Mgedezi
and pointed out that the
extension of the rule as contained in the majority judgment was not
considered in
Safatsa
(
supra
) or
Mgedezi
(
supra
)
(at 15G-I).
[92] For the sake of completion I should mention that
there were two appellants in
Nzo
. The first appellant, Nzo,
was successful on appeal and was acquitted on the ground of
disassociation only. It was found that by
making a full disclosure of
his involvement and that of his co-perpetrators in the joint venture
after his arrest, he disassociated
himself from any further
involvement. The murder was committed, as I said earlier, only after
his arrest and after his disassociation
from the common design.
[93] The second appellant, however, was convicted on the
basis of his foresight of the murder and his continued association
with
the common design. The point, however, is that but for his
disassociation, Nzo would also have been convicted on such basis if
he did not confess his involvement in the common design, even in
circumstances where he was in detention when the murder was
committed.
I shall shortly return to the issue of disassociation.
[94] What is the effect of the judgment in
Nzo
on
the present day status of the law of criminal liability under the
common purpose rule? As I pointed out at the outset of this
judgment,
the rule in
Safatsa/Mgedezi
has received constitutional
blessing in
Thebus
(CC). In approving the approach in
Safatsa/Mgedezi
, the Constitutional Court does not refer to
Nzo
, and neither does the Supreme Court of Appeal in
Thebus
(SCA). Is this Court nevertheless obliged by the
stare decisis
rule to apply
Nzo
? In considering these questions it must
be recognized that this Court is not empowered, and nor is it
sufficiently presumptuous,
to express any views on the correctness or
otherwise of
Nzo.
Although Mr
Siyo
did not refer to
Nzo,
it nevertheless remains binding authority on this Court.
The issue to be decided is whether it remains binding authority in
view
of the constitutional approval of the
Safatsa/Mgedezi
rule
in
Thebus
(CC).
[95] The starting point may be to consider the extent to
which the three judgments in
Safatsa, Mgedezi
and
Nzo
respectively have been followed in South Africa before
Safatsa
and
Mgedezi
received constitutional consideration. The
result is interesting.
[96] As far as I could ascertain, the judgment in
Nzo
has only been followed in South African case law on the issue of
disassociation, and not on the issue of its extended scope of
liability.
The cases following
Nzo
on the issue of
disassociation (correctly so), are
inter alia, S v Singo
[1992] ZASCA 219
;
1993
(2) SA 765
at 771F;
Molimi v S
[2008] ZACC 2
;
2008 (5) BCLR 451
at 466C;
S
v Maelangwe
1999 (1) SACR 133
at 152C-D (NC);
S v Musingadi
and Others
2005 (1) SACR 395
at 407B-D (SCA); and
S v Nduli
1993 (2) SACR 501
(A) at 504D-E.
[97] The second appellant in
Nzo
was convicted on
the extended ground of foresight of death, notwithstanding the
absence of any evidence that he was present or involved
in the
murder. There are no reported cases, as I said, which follow
Nzo
on the issue of the extended scope of liability. On the other
hand, there is nearly an endless list of cases which follow
Safatsa
(
supra
) and
Mgedezi
(
supra
) on the issue of
the restricted scope of liability. I mention only a few:
[98] The cases following
Safatsa
(
supra
)
are:
S v Jama and Others
1989 (3) SA 427
(A) at 436D;
S v Motaung and Others
[1990] ZASCA 75
;
1990 (4) SA 485
(A) at 486F-G;
Magmoed
v Janse Van Rensburg and Others
[1992] ZASCA 208
;
1993 (1) SA 777
(A) at 788E-F;
S
v Singo
[1992] ZASCA 219
;
1993 (2) SA 765
(A) at 772C-E.
[99]
The cases following
Mgedezi
(
supra
)
are:
S v Thebus
[2003] ZACC 12
;
2003 (2) SACR 319
;
S v Singo
[1992] ZASCA 219
;
1993
(2) SA 765
(A) at 772C-E;
S v Khumalo
[1991] ZASCA 70
;
1991 (4) SA 310
(A) at
351E-F;
S v Mbanyaru & Another
2009 (1) SACR 631
(C) at
637H-J.
[100] It was submitted on behalf of the appellant in the
present case that, in any event, he disassociated himself from the
common
design by turning his back on Sijeni after he found him and
walked away. If this submission is correct, then
Nzo
should be
followed on the issue of disassociation.
[101] The submission is tempting. However, in my
respectful view, an honest appraisal of the facts do not show a
disassociation
on the part of the appellant from the common purpose
and general design to attack the Makhwaleni.
[102] The appellant was part of the attacking force of
the Manduzini. He was armed with a shotgun and actively participated
in the
pursuit of the Makhwaleni. Until the time he turned his back
on Sijeni and walked away, he made common purpose with the aims of
the attack. He foresaw the possibility that huts may be burned down
and members of the Makhwaleni clan may be shot and killed.
Notwithstanding, he recklessly and actively persisted with his
association with the attacking force, right up to the time of his
disassociation with the common design in the manner described above.
[103] The evidence discloses that he only disassociated
himself from the attack when he saw Sijeni and Gagadu hiding in the
banks
of the rivulet near the women. He called out to them to the
effect that, “…
you should not hide because that would
not be clever …”
He thereupon called his other
co-pursuers, turned and walked away.
[104] The disassociation evidenced by the above facts,
however, on all probabilities took place after sunrise and after the
acts
of arson, murder and attempted murder by his fellow members of
the attacking force had already been committed. I am therefore unable
to find, on the facts, that his act of disassociation took place
before the crimes were committed and that he therefore was no
longer
party to the common purpose of the grand design.
[105] I have no doubt that if
Nzo
remains binding
authority in respect of its extended scope of liability, and is
applied to the facts of this case, then the appellant
was correctly
convicted of murder and the other crimes. The question remains
whether
Nzo
continues to be binding authority in this respect
in view of
Thebus
(CC).
[106] The extension of the application of the common
purpose rule in
Nzo
has, in my respectful view, far reaching
and profound implications, both constitutionally and dogmatically. It
is not merely an
extension of the scope of liability under the
Safatsa/Mgedezi
rule; in many respects it is contrary to and
even destructive of such rule.
[107] First, it does not substitute causation with an
active association with the conduct which caused the death as
required by
Safatsa/Mgedezi.
The element of causation between
conduct and death is removed in its entirety. It is replaced by
foresight, which is an element
of
culpa
and not of causation.
[108] Second, the extended scope of liability under
Nzo
does not serve the purpose for the introduction of the common
purpose doctrine into South African criminal law. It does not only
remove the definitional element of causation, but it also removes a
foundational requirement for criminal liability; namely the
element
of an
actus reus.
In this regard the foresight of harm and,
notwithstanding, the continued association with the common design or
purpose, is an element
of
culpa
in the form of
dolus
eventualis
, and must not be confused and/or conflated with the
element of
actus reus
. In addition to
culpa
, the
definitional requirement of an
actus reus
remains to be
proved. Also, and for the reasons more fully discussed in the next
paragraph, the association with the general design
in the absence of
a prior agreement is insufficient; to qualify as an
actus reus
it
must be an active association with the particular conduct which
caused the death or other consequence crime. Finally, the approach
in
Nzo
elevates mere intent to commit murder (namely the
foresight of death in the execution of the general design), to a
conviction of
murder. This is a concept not only foreign to South
African criminal common law, but to most legal systems in the world.
[109] Third, the appellant’s contention in
Nzo
,
namely that there must be an active association with a particular
crime and that a collective brush may not be used to tar all
the
accused collectively, was rejected by the majority judgment in
Nzo
in the following words at 8G:
“
This is plainly not so. In a case like the
present one there is no logical distinction between a common design
relating to a particular
offence and one relating to a series of
offences, and I can conceive of no reason for drawing such a
distinction.”
This finding seems to be in direct contrast with the
approach in both
Safatsa
(
supra
) and
Mgedezi
(
supra
)
,
and also to the judgment in
Thebus
(CC).
[110] Fourth, and except for the requirement of
dolus
(foresight), the facts in
Nzo
do not comply with any one
of the other four requirements for liability under the common purpose
rule as set out by Botha JA in
Mgedezi
(
supra
) and
referred to earlier in this judgment. This approach is contrary to
the approval of the rule in
Safatsa/Mgedezi
and therefore to
the judgments in the
Thebus
(SCA) and
Thebus
(CC).
[111] Fifth, and with great respect, far from blurring
the issues, the practical implication of the extended rule in
Nzo
when taken to its logical conclusion, is indeed that, (as held by
Steyn JA in his minority judgment) by reason of an active association
with the aims of the armed struggle and foresight that lives may be
lost in the execution of such aims, every member of the ANC
at the
time would have been guilty of murder, a consequence not worthy of
serious thought and, as far as I know, never applied
in South Africa.
If applied to the facts of this case, every single member of the
attacking force of the Manduzini is guilty of
all the crimes, whether
they were present or even knew about the crimes or not.
[112] Sixth, and finally, the constitutional requirement
that all accused persons must be treated equally, prohibits any rule
which
applies different criteria or requirements for criminal
liability. Effectively, and depending on whether the Court applies
the
rule in
Safatsa/Mgedezi;
the basis of liability in
Nzo
;
or the definitional elements of a crime under the traditional common
law, the results will differ depending on the rule applied.
The
constitutional justification for crime control and an effective
criminal justice system as applied in
Safatsa/Mgedezi
finds,
in my respectful view, no application to the
Nzo
model, and
does not carry the constitutional approval from the Constitutional
Court.
[113] Of course, it must be remembered that
Nzo
was
decided nearly four years prior to the interim constitution being
promulgated on 27 April 1994. What may today be regarded as
constitutionally objectionable was not considered as any legal
impediment to the rule as formulated in
Nzo
at the time the
judgment was delivered. Nevertheless, the judgment in
Nzo
has
come in for severe criticism. See, for instance, Jonathan Burchell,
S
v Nzo 1990 (3) SA (A) – Common Purpose Liability
SACJ
(1990) (3) pp. 345-354; and by the same author,
Joint enterprise
and common purpose : perspectives in English and South African
criminal law
, SACJ (1997) 10 pp. 125-140 and 133-139.
[114] There is a final aspect of the judgment in
Nzo
which calls for comment. It relies, as mentioned earlier, on
Madlala
(
supra
) for extending the rule in
Safatsa/Mgedezi
: The passage in
Madlala
(from the
unanimous judgment of Holmes JA) reads as follows at 640F-H:
“
Generally, and leaving aside the position of
an accessory after the fact, an accused may be convicted of murder if
the killing was
unlawful and there is proof-
that the individual killed the deceased, with the
required
dolus
e.g. by shooting him; or
that he was a party to a common purpose to murder,
and one or both of them did the deed; or
that he was a party to a common purpose to commit
some other crime, and he foresaw the possibility of one or both of
them causing
death to someone in the execution of the plan, yet he
persisted, reckless of such fatal consequence, and it occurred: see
S v Malinga and Others,
1963 (1) SA 692
(A.D.) at 694 F-H and
695; or
that the accused must fall within (a) or (b) or
(c)-it does
not matter which, for in each event he would be
guilty of
murder.”
[115] Hefer JA in
Nzo
relied, in particular, on
(c) above as authority for the proposition that foresight, coupled
with an active association in the grand
design of the common purpose,
constitute sufficient grounds for liability under the common purpose
rule. This approach, with respect,
is at this point in time and at
this point of the development of the law on criminal liability under
the common purpose rule, problematic.
Madlala
(
supra
)
was decided some twenty years before
Safatsa/Mgedezi.
The rule
in
Safatsa/Mgedezi
narrowed the scope of liability on the
ground of active association considerably. And this was the approach
approved by both
Thebus
(SCA) and
Thebus
(CC). It
follows that the meaning and content of the concept “
common
purpose”
in (c) above must today bear the meaning given to
it by
Safatsa/Mgedezi
as approved by
Thebus
(CC). If
this approach is correct, then
Madlala
(
supra
) is no
longer authority for the extended scope of liability under the common
purpose rule.
[116] In any event, what I think Holmes JA had in mind
with (c), is a situation our trial courts are regularly faced with,
and that
is this. A gang of four robbers either agree or embark on a
common purpose venture to rob a bank, but not to commit murder. Two
of the robbers are armed. The duty of one of the unarmed robbers is
to keep watch at the door of the bank. They do not have any
direct
intention to kill. During the robbery a shoot-out occurs in the
course of which a bank employee (or robber) is shot and
killed. All
four robbers, including the two unarmed robbers and the one keeping
watch, foresaw the possibility of death but notwithstanding
such
foresight they recklessly pursued their aims of robbery and
associated themselves with the deeds of the others. In these
circumstances the two unarmed robbers, including the one who stood
watch at the door, are also guilty of murder on the common purpose
rule. The result will be the same, even when applying the principles
in
Safatsa/Mgedezi
and the requirements for liability under
the common purpose rule in
Mgedezi
(
supra
).
[117] It is therefore my respectful view that
Madlala
(
supra
) can no longer be interpreted as authority for the
approach in
Nzo.
For the above reasons, and following the
judgments in
Thebus
(SCA) and
Thebus
(CC), I believe
this Court must follow the rule in
Safatsa/Mgedezi
in
preference to the extended application in
Nzo.
[118] The final chapter on the subject is still to be
written by either the Supreme Court of Appeal or the Constitutional
Court
(or both), but for the purposes of this judgment I do not
believe that in the light of the judgments in
Thebus
(SCA) and
Thebus
(CC) the judgment in
Nzo
remains binding on this
Court. The development of the common purpose doctrine in South
African criminal law since the judgment in
Nzo
, and
particularly the constitutional development as formulated by
Thebus
(CC), has, in my respectful view, overtaken the judgment in
Nzo.
Notwithstanding, it bears repetition that the Supreme Court of Appeal
or Constitutional Court will undoubtedly have the last say
on the
subject.
[119] Applying that rule to the facts of this case, the
following emerge.
[120] First, the appellant was not present at the scene
where the violence which resulted in the criminal charges against him
was
being committed. The first requirement in
Mgedezi
(
supra
)
is therefore not met.
[121] Second, there is no evidence that he was even
aware of the crimes committed elsewhere by the other members of the
attacking
force. The fact that he foresaw that those crimes may be
committed and nevertheless pursued the common purpose venture, is
relevant
only to the issue of
culpa;
it does not constitute a
physical, active association with the conduct which caused the death
(or other crimes). Mere intent to
commit a crime in the absence of an
actus reus
(active association in the case of common purpose)
is insufficient for criminal liability. The second requirement in
Mgedezi
(
supra
) is also not met.
[122] The third requirement for liability in terms of
Mgedezi
(
supra
) is that an accused person must have
intended to make common cause with those who were actually
perpetrating the crime. This means
with those whose conduct caused
the crimes. For the reasons more fully discussed in
Safatsa
/
Mgedezi
and mentioned earlier, the association must be with those particular
individuals and not with the general, broad common design
of the
attacking mob. It accordingly follows from the absence of the first
two requirements that also the third requirement in
Mgedezi
(
supra
) is not met.
[123] The fourth requirement in
Mgedezi
(
supra
)
is that the appellant must have manifested his sharing of a common
purpose with the perpetrators of the assault by himself performing
some act of association with the conduct of the others. The “
conduct
of the others”
is a reference to the conduct of those who
actually perpetrated the crimes as contemplated by the requirement.
Again, by virtue
of the absence of the first two requirements, the
fourth requirement is not met. Save for having been part of the
attacking force,
there is no evidence of any act committed by the
appellant to manifest his association with the actual individual
perpetrators
of the crimes.
[124] I accept that the appellant had the necessary
mens
rea
in the form of
dolus eventualis
, in that he foresaw
death and arson and recklessly continued with his association of the
attacking force in general. The fifth
requirement is thus met, but in
the absence of the first four requirements mere intent to commit a
crime is insufficient for criminal
liability.
[125] If I am correct that
Nzo
can no longer be
interpreted as an extension of the principles in
Safatsa/Mgedezi
,
then on my interpretation of
Safatsa/Mgedezi
the requirements
for criminal liability under the common purpose rule are not met on
the facts of this case. I therefore believe,
with respect, that to
the extent that the Court
a quo
either followed the judgment
in
Nzo
, or failed to apply the principles in
Safatsa/Mgedezi
(
supra
) as set out in this judgment, it had misdirected
itself.
[126] It follows that, in my respectful view, the appeal
should succeed and the appellant should be found not guilty.
[127] Before I propose the order I intend to make in
this appeal, I should mention that if this proposed order is to
withstand scrutiny
by a Higher Court, then those accused who did not
prosecute their appeal, may languish innocently in custody. I
therefore request
the Director of Public Prosecutions to take this
aspect of the matter up with the local Legal Aid Board with a view to
prosecuting
those appeals.
[128] I propose the following order:
The appeal of the appellant against his conviction
succeeds, and his conviction and sentence is set aside and is
substituted by
the following order:
“
The accused is found not guilty and he is
discharged on all counts.”
I agree :
_____________________
EBRAHIM J
I agree
_____________________
MAQUBELA AJ
It is so ordered :
_____________________
ALKEMA J
Counsel
for the Appellant : Adv. Qitsi
Instructed by : Legal Aid Office, Mthatha
Counsel for the Respondent : Adv. Siyo
Instructed by the : DPP office, Mthatha