Dube and Others v S (AR 407/08) [2009] ZAKZPHC 42; 2010 (1) SACR 65 (KZP) (14 September 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2009
>>
[2009] ZAKZPHC 42
|

|

Dube and Others v S (AR 407/08) [2009] ZAKZPHC 42; 2010 (1) SACR 65 (KZP) (14 September 2009)

REPORTABLE
THE KWAZULU-NATAL HIGH
COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 407/08
In the
matter
between
:
NSUKUKAYIFANI PATRICK
DUBE
1
ST
APPELLANT
NDODO OSCAR JELE
2
ND
APPELLANT
DONGAZI JIMMY JAMES
NGOBENI
3
RD
APPELLANT
SYDNEY NGESILE JOE
KANANA
4
TH
APPELLANT
SMANGALISO SIMANGA
CYRIL SIBIYA
5
TH
APPELLANT
CHARLIE EPHRAIM
TEMBE
6
TH
APPELLANT
KHULILE GLENWOOD
ZOKO
7
TH
PPELLANT
BONGANI NHLANHLA
GABELA
8
TH
APPELLANT
JOHANNES MOHLOPHEKI
LETSOALO
9
TH
APPELLANT
and
THE STATE
RESPONDENT
APPEAL JUDGMENT
Delivered
on 14 September 2009
______________________________________________________
SWAIN J
[1] In the early hours
of the morning on Sunday 20 March 2005,
some of the appellants
were assiduously applying themselves to the task of drilling into the
vault of the First National Bank (the
Bank) at Harding The remaining
appellants had taken up positions as look-outs outside the Bank.
[2] The fulfilment of
their objective of laying their hands on the money in the vault was
however frustrated by the arrival of the
police, who surrounded the
Bank. In the course of an attempt to escape by those appellants
inside the Bank, one of their number
was shot by Detective Inspector
Crouse and died from his wounds a few days later. All of the
appellants were arrested.
[3] As a consequence,
they all appeared before Theron J and two assessors to answer to the
following charges:
[3.1]
Count
1
Housebreaking
with intent to commit theft and attempted theft
[3.2]
Count
2
Murder
[3.3]
Count
3
Attempted
murder
of which they were
convicted and sentenced to terms of imprisonment, the details of
which I will deal with in due course.
[4] Leave to appeal
against the convictions on Counts 2 and 3, as well as the sentences
imposed on all of the counts, was thereafter
granted by the learned
Judge.
[5] What was established
by the evidence was that all of the appellants were parties to a
common purpose to break into the Bank
and steal the money in its
vault, which formed the basis for their conviction on Count 1. The
sole issue raised in respect of
the challenged convictions is whether
the Court
a
quo
correctly found on the facts, that the State had established beyond a
reasonable doubt, that the appellants possessed the requisite

subjective intention in respect of the counts of murder and attempted
murder. In other words, intention in the form of
dolus
eventualis
,
because it was clear on the evidence, that the will of the appellants
was obviously not directed at the death of their cohort
(dolus
directus)
,
nor at the attempted murder of Detective Inspector Crouse, by their
deceased cohort.
[6] As stated by Holmes
J.A. in
S v Sigwahla
1967
(4) SA 566
(A) at 570 E
“
Subjective foresight, like any
other factual issue, may be proved by inference. To constitute proof
beyond reasonable doubt the
inference must be the only one which can
reasonably be drawn. It cannot be so drawn if there is a reasonable
possibility that
subjectively the accused did not foresee, even if he
ought reasonably to have done so, and even if he probably did do so”.
[7] In similar vein is
the following dictum of Olivier J A in
S v Lungile &
Another
1999 (2) SACR 597
(SCA) at page 602 para 16
“
but this court has cautioned, on
several occasions, that one should not too readily proceed from
‘ought to have foreseen‘ to
‘must have foreseen’ and hence to
‘by necessary inference in fact did foresee’ the possible
consequences of the conduct
inquired into.
Dolus
being a subjective state of
mind, the several thought processes attributed to an accused must be
established beyond any reasonable
doubt, having due regard to the
particular circumstances of the case”.
[8] The drawing of an
inference from the proved facts that an accused
“foresaw
a particular consequence of his acts can only be answered by
deductive reasoning. Because such reasoning can be misleading,
one
must be cautious”.
Lungile’s case
supra
at
603 a – b
[9] The following proved
facts relevant to this enquiry emerge from the evidence of Mr. Emile
Lundall and Detective Inspector Crouse,
both of whom gave evidence on
behalf of the State. The evidence of Lundall is of particular
importance, because he was privy to
all of the planning of the
break-in of the Bank by the appellants. The appellants believed they
had successfully bribed him to
participate in their criminal mission,
to ensure that he did not reveal any activation of the alarm at the
Bank, which was monitored
by his employer, Prestige Security. The
truth of the matter however, was that he had revealed the plans of
the appellants to his
employer and the South African Police Services
(SAPS) at the outset, and had kept the SAPS appraised of
developments, as the planning
proceeded.
[10] The following facts
emerge from Lundall’s evidence:
[10.1] The appellants
were not planning a robbery, but a break-in of the Bank and would
require a three hour period, during which
he would be required to
keep people away from the vicinity of the Bank, not reveal what they
were doing and if the alarm was activated,
to respond to it, but not
reveal their presence. Because they had specialist alarm people
involved, they were confident that if
the alarm did go off, it would
only sound once.
[10.2] They had obtained
the co-operation of the Harding SAPS, as well as the investigating
officer, if anything went wrong.
[10.3] Lundall informed
two of the appellants that the Bank had requested him to place a
guard at the Bank, for the weekend when
the break-in was planned,
because the drop safe in front of the Bank was broken. They wanted
to know if the guard would be armed
or unarmed, and he responded that
he would be unarmed. The appellants discussed this issue, and then
told Lundall that he must
place an
“oldish”
guard there for the weekend. They said they would kidnap the guard,
tie him up and take him somewhere for the duration of the
break in.
When Lundall told them that they must not hurt the guard, they said
this would not be a problem. However, he was told
later that no
guard must be placed at the Bank, to which he agreed.
[10.4] Lundall was also
told that they would break into the back of the Bank and if he had to
respond to the alarm which may go
off once, that he must not alert
anybody. In addition, he was needed to chase away any people walking
next to the Bank because
there would be a risk of noise from drilling
into the vault. In addition, he was told that the policeman on duty
that night had
a cell phone on him, so that they would be able to
contact him.
[10.5] Shortly after the
appellants broke into the bank, Lundall was advised by his office
that the alarm had gone off, and he
contacted Superintendent Claasen,
who responded that the police were in position, that he must go to
the scene, check it as normal
and report that all was in order. This
was at approximately 02h35.
[10.6] On his arrival at
the Bank he noticed a police van parked in the vicinity. This police
vehicle then proceeded into the
yard of the Bank, towards the back
area and parked next to his vehicle. He then noticed that the bullet
proof window had been
removed from the fire escape door and was lying
next to the wall.
He assumed that was the
point of entry. The fire escape door was standing slightly ajar. He
then met Inspector Gabela who was
driving the police van and he
thought to himself that the Inspector must definitely have seen the
window lying on the floor. However,
the Inspector said to him that
everything looked okay and there were no problems. He agreed with
the Inspector and said that everything
looked in order. The
Inspector had a Constable in the police van with him. They then
parted.
[10.7] Appellant No. 8
then informed Lundall that the appellants inside the bank were
concerned about some drunk patrons outside
the nightclub in the
vicinity, who had crossed the road towards the Bank. They were about
to start drilling into the vault and
were concerned that these
persons would hear the noise. The appellants inside the Bank wanted
Lundall to remove these people from
the street. Lundall said it
would be difficult for him, as a security guard, to do this. He told
them they should rather telephone
the policeman they had on their
side, as it would be much easier for him to remove these persons.
One of the appellants then phoned
the policeman and shortly
thereafter the police van arrived and removed these people.
[10.8] Thereafter a
vehicle arrived at the ATM at the Bank, and a call was received from
the appellants inside the Bank, that they
were concerned about its
presence. Lundall assured them that he knew the people in the
vehicle, they did not have to worry about
them as they probably only
wanted to draw money. The people in the Bank must have had somebody
checking out of the window as to
what was happening outside the Bank.
The vehicle then left.
[10.9] Lundall then
telephoned Superintendent Claasen, having left the scene to attend to
another alarm activation, and told her
he presumed that the
appellants had started drilling into the vault.
[11] What then transpired
at the Bank of relevance to the present enquiry, is taken up by the
evidence of Detective Inspector Crouse,
who testified as follows:
[11.1] On the arrival of
the police at the bank, he noticed the back door was standing
slightly open, and he could hear a drilling
noise from inside the
Bank. Whilst standing there his eyes saw movement inside the Bank,
because a blind on the window had been
opened and some of the lights
were switched on inside the Bank.
[11.2] He saw that there
were males running to the back door where he was standing. He
realised that if he could see them, they
could see him, so he moved
away from the door, which opened outwards. He had his firearm drawn.
As the door flung open, he shouted
“it
is the police”.
A
male appeared in the door with an object in his hand and attempted to
strike him with it. This person tried to strike him with
this object
again, even though he had shouted
“police”
for the second time. He then fired at this person, causing this
person to go backwards into the Bank. This caused the other persons,

who were following, to turn around and run back towards the vault
area of the Bank. He then established that the object this
individual had attempted to strike him with was a crow-bar. He had
not thought, at any stage, that the object the deceased possessed
was
a firearm.
[11.3] He then heard
noises coming from the stairway leading to the first floor, and he
then went up the stairs and started searching
the offices with other
members of the police, as a result of which appellant Nos. 3, 4, 5
and 6 were found and arrested.
[12] It was common cause
that none of the appellants were in possession of firearms when they
were arrested. However, two of the
appellants were licensed gun
owners.
[13] From this evidence
the following emerges:
[13.1] The statement
that the appellants enjoyed the co-operation of the SAPS, at least to
the extent of the Inspector on duty
that night, was no idle boast.
The Inspector concerned turned a blind eye to the clear evidence of a
break-in and, when summoned,
removed the drunken patrons of the night
club from the street outside the Bank.
[13.2] The appellants
believed they had neutralised any danger of detection by virtue of
the alarm being activated, because of
the co-operation of Lundall.
[13.3] The appellants
had look-outs stationed inside and outside the Bank, to prevent
detection as a result of the noise of drilling.
[13.4] Up until the
stage when the police arrived, the operation was well planned.
Thereafter however, the conduct of the appellants
indicates panic and
a lack of any co-ordinated plan to deal with what was clearly the
unexpected arrival of the police.
[14] In my view, a
reasonable inference to be drawn is that the appellants never
subjectively foresaw that they would be apprehended,
because they had
taken careful steps to eliminate the danger of discovery by the
police, the private security company, as well
as members of the
public.
[15] The drawing of such
an inference is supported by the evidence that they were all unarmed.
Apprehension by the police and possibly
the private security company
would, to the knowledge of the appellants, carry with it the real
danger that firearms could be used
to arrest the appellants.
[16] At the very least,
the absence of firearms supports the drawing of a reasonable
inference that even if the appellants subjectively
foresaw the
possibility of arrest, their subjective intention was that there
would be no
“resistance
dangerous to
life”
In other words, the appellants, being unarmed, did not reconcile
themselves to a
“dangerous
resistance”
to
arrest with all its attendant consequences.
[17] In this context, the
dictum of Schreiner A C J (as he then was)
in
R v Bergstedt
1955
(4) SA 186
(A) at 188 H – 189 A
is apposite.
“
In the present case knowledge of
the probability that in the event of interference by the police or
others there would be resistance
dangerous to life depended on
knowledge that one of the party had a pistol, for apart from that
fact there would be no ground for
inferring a mandate to offer such
dangerous resistance. Although, once the mandate to attain a result,
such as the death of a
person, is proved, the means is not important
(
Rex v Shezi and Others
1948 (2) S.A. 119
(A.D.) at p. 128), here, as a matter of evidence,
knowledge of the presence of the means was vital. This brings me to
a consideration
of the evidence as to the appellant’s knowledge
that one of the party had a pistol and to the failure of the summing
up to refer
to this evidence.”
[18] In the present case
“the dangerous
resistance“
offered
by the deceased was not in the form of a firearm, but by way of a
crowbar.
As in Bergstedt’s case
however, on the evidence, possession of a firearm by one or more of
the appellants, coupled with the knowledge
of such possession by the
remaining appellants, would be a necessary ground for inferring a
mandate to offer such
“dangerous
resistance”.
Put
differently, the evidence does not establish that the appellants
subjectively foresaw that one of their number would arm himself
with
one of the housebreaking implements, and thereby offer
“dangerous
resistance”
to
an armed policeman, resulting in the assailant’s death. If
“dangerous resistance”
to arrest by the police, or the private security company, was
subjectively foreseen by the appellants, they would have ensured
that
one or more of their number was armed with a firearm.
[19] The significance of
the possession of a firearm, by a member of a common purpose to
commit the crime of housebreaking with
intent to steal and theft, is
illustrated by the following dictum of Holmes J A in
S v Malinga &
others
1963 (1) SA 692
(A) at 695 A – B
“
In the present case all the accused
knew that they were going on a housebreaking expedition in the car,
and that one of them was
armed with a revolver which had been
obtained and loaded for the occasion. It is clear that their common
purpose embraced not
only housebreaking with intent to steal and
theft, but also what may be termed the get-away. And they must have
foreseen, and
therefore by inference did foresee, the possibility
that the loaded fire-arm would be used against the contingency of
resistance,
pursuit or attempted capture.”
[20] This of course does
not mean that the presence, or absence, of a firearm is a determining
factor in all cases. Each case must
be judged on its own facts. In
the present case however, the evidence reveals that because of the
careful planning of the operation,
the appellants did not
subjectively foresee, nor plan for the contingency of armed
“resistance, pursuit
or attempted capture”.
Simply
put, the State did not prove beyond a reasonable doubt that the
conduct of the deceased in utilising a housebreaking implement
to
resist arrest by attacking an armed policeman, leading to the demise
of the deceased, was foreseen by the appellants who reconciled

themselves to this possibility. In acting as he did the deceased
embarked upon a
“frolic
of his own”
in
the words of Cachalia A J A in
S v Molimi &
Another
[2006] ZASCA 43
;
2006 (2) SACR 8
(SCA) at 20 g – i
“
By taking a hostage he had, in my
view, embarked on a frolic of his own. These actions could hardly
have been foreseeable by the
other participants in the common
purpose. To hold otherwise, as the Court
a
quo
did, would render the
concept of foreseeability so dangerously elastic as to deprive it of
any utility. To put it another way,
the common purpose doctrine does
not require each participant to know or foresee every detail of the
way in which the unlawful
result is brought about. But neither does
it require each participant to anticipate every unlawful act in which
each of the participants
may conceivably engage in pursuit of the
objectives of the common purpose.”
[21] This conclusion then
requires examination of the manner in which the learned Judge reached
the opposite conclusion, as expressed
in the following passage from
the Judgment:
“
It is clear from the precautions
taken by the group that they foresaw the possibility that somebody in
the vicinity could hear the
drilling and interfere with their plan,
possibly by notifying the police.
Once it is accepted that the persons
planning the housebreaking foresaw the possibility of apprehension,
it must also be accepted
that they foresaw all the risk
(sic)
that go hand in hand with apprehension, such as arrival on the scene
of armed police officers and the possibility of death. In
this
matter, the group foresaw all these associated risks and took
measures to prevent them from eventuating. The fact that they
took
preventative measures, does not negate the fact that they foresaw the
possibility of risk and apprehension and its associated
dangers.”
[22] With respect, this
reasoning conflates the concepts of an appreciation of the risk of
harm, with the steps taken to avoid the
occurrence of such harm.
[23] The fact that the
appellants foresaw the possibility of apprehension does not mean they
foresaw the possible consequences of
apprehension, and reconciled
themselves to such an eventuality. Precisely because of their
foresight of the possibility of apprehension,
they took extensive
steps to prevent its occurrence. The nature of the steps taken by
the appellants, to prevent the risk of harm
of apprehension
materialising, has to be weighed in deciding whether the appellants
nevertheless subjectively foresaw the possibility
of apprehension and
the consequences of apprehension arising, and reconciled themselves
to that possibility. The learned Judge,
with respect, erred in
concluding that the taking of preventative measures by the appellants
did
“not negate the
fact that they foresaw the possibility of risk and apprehension and
its associated dangers”.
For the reasons set out
above, in my view, precisely because of the steps taken by the
appellants to prevent the risk of apprehension
materialising, they
did not subjectively foresee the realisation of such a risk, nor its
attendant dangers.
[24] A further factor
relied upon by the learned Judge, was the following:
“
Having fixed their colours to the
mast as they did, by falsely denying involvement, it will, in the
circumstances of this matter,
be pure speculation to hold that the
evidence discloses the reasonable possibility that they did not
foresee the possibility of
death. An accused who deliberately takes
the risk of giving false evidence in the hopes of escaping conviction
altogether cannot
expect a Court to make findings in his favour and I
emphasize, in the absence of evidence justifying a conclusion in his
favour.
See
R v MLAMBO
1957 (4) SA 727A.
This was not one of those cases where there was
evidence forming part of the State’s case which could serve as a
factual basis
to justify such an inference in favour of the accused.”
[25] In the light of the
evidence led by the State, set out above, I am satisfied there was
sufficient evidence to form a factual
basis for drawing the inference
I have drawn.
[26] Turning to the issue
of whether the evidence establishes that the appellants are
nevertheless guilty of the crime of culpable
homicide, on the count
of murder. As stated by Snyman in Criminal Law (4
th
Edition) page 266:
“
The same principle applies to
culpable homicide: if it is proved that a number of people had a
common purpose to commit a crime
other than murder (such as assault,
housebreaking or robbery), and that in the course of executing this
common purpose the victim
has been killed, the one perpetrator’s
act of causing the death can be attributed to the other members of
the common purpose.
However, the negligence of one perpetrator can
never be attributed to another. Every party’s negligence in
respect of the death
must be determined independently.”
I agree with the learned
author’s view.
[27] The possible
negligence of each of the appellants would have to be established, by
applying the test of whether a reasonable
person in the circumstances
of the appellants, would have foreseen the death of the deceased. It
is not necessary that the reasonable
person foresee the precise way
in which the deceased died, that he should foresee the possibility of
death in general, is sufficient.
S v Bernadus
1965
(3) SA 287
(A) at 307 B – C
On the present facts
however what the reasonable person would have to foresee, is the
death of the deceased as a consequence of
an attempt to apprehend
him.
[28] A consideration of
the evidence as to the steps taken by the appellants to avoid
apprehension, equally leads me to conclude
that a reasonable man
would not have foreseen the possibility of such an occurrence.
Consequently, it is unnecessary to consider
whether a reasonable
person would have taken steps to guard against such a possibility and
if so, whether the appellants failed
to take such steps.
Kruger v Coetzee
1966 (2) SA 428
(A) at 430
[29] Turning to the issue
of the sentences imposed. In the light of the conclusion I have
reached as to the convictions on the
counts of murder and attempted
murder, the only sentence to be considered is that on the count of
housebreaking with intent to
commit theft and attempted theft.
[30] Mr. Howse, who
appeared for the 8
th
appellant, submitted that the crime was facilitated by the police and
that this aspect should receive full recognition in the sentence

imposed. In this regard he relied upon
S v Hammond
2008
(1) SACR 476
(SCA) at para 29
[31] It is clear however
that in Hammond’s case the appellant
“was
seduced by police agents to participate”.
Hammond’s case
supra
at para 29
In the present case the
police did no such thing. They simply monitored the situation and
allowed the appellants to proceed with
their plan, until their
conduct had established the crimes encompassed by Count 1. In this
regard I do not agree with the criticism
of Mr. Howse, which he
directed at the police, namely that many of the aggravating features
of this crime were facilitated or created
by the police. It is of
course true that the police could have prevented the break-in from
ever taking place, but to place the
blame on the police for the
unexpected turn of events which resulted in the death of the
deceased, is unjustified.
[32] It is trite law that
in the absence of any misdirection by the Court
a
quo
,
this Court may only interfere with the sentence imposed if it induces
a sense of shock.
S v Hlapezula &
others 1965 (4) SA439 (A) at 444 A
or where a striking
disparity exists between the sentence imposed by the trial Judge and
the sentence which, according to the Court
of Appeal, should have
been imposed.
S v Masala
1968 (3)
SA 212
(A) at 214 H
[33] When due regard is
had to the fact that the appellants spent approximately two and a
half years in custody awaiting trial,
which factor was considered by
the learned Judge, I find a striking disparity between the sentence
imposed by the learned Judge
and the sentence which I would impose.
[34] It is only on this
aspect that I disagree with the weight attached by the learned Judge
to the various aggravating and mitigating
factors relevant to the
imposition of sentence. The learned Judge sentenced appellant No. 4
to eighteen years’ imprisonment,
and the remaining appellants to
fifteen years’ imprisonment on this count. Due regard being had to
the period spent in custody,
the practical effect of the sentences
imposed is that appellant No. 4 will have spent twenty and half years
in prison, and the
remaining appellants seventeen and a half years in
prison, on Count 1.
[35] I am of the view
that an appropriate sentence in respect of Count 1, would be fifteen
years’ imprisonment in respect of
appellant No. 4, and twelve
years’ imprisonment in respect of the remaining appellants. It is
this disparity which I regard
as striking, which leads me to conclude
that the sentences imposed by the learned Judge must be altered.
[36] The order I would
therefore propose is the following:
The appeals of all of the
appellants in respect of Count 2, that of murder and Count 3, that of
attempted murder, are upheld and
the convictions and sentences
imposed in respect of these counts are set aside, and replaced with a
verdict of not guilty on Counts
2 and 3.
The appeals of all of the
appellants in respect of the
sentences imposed in
respect of Count 1, that of housebreaking with intent to commit theft
and attempted theft are upheld, the sentences
are set aside and
replaced with the following sentences:
Appellant Nos. 1, 2, 3,
5, 6, 7, 8 and 9 are sentenced to 12 (twelve) years’ imprisonment
on Count 1.
Appellant No. 4 is
sentenced to 15 (fifteen) years’ imprisonment on Count 1.
I agree
___________
K. PILLAY J
I agree
_____________
MADONDO J
It is so ordered
____________
SWAIN J
Appearances/
Appearances:
For Appellant
Nos. 1 –
7 & 9
:
Adv.
H. Potgieter
Instructed by
:
H.J. Groenewald Attorneys
Pretoria
For Appellant No.
8
: Adv.
J. Howse
Instructed
by
:
Mbambo
& Company Kwadukuza
For the
Respondents
: Adv.
D. Paver
Instructed by
: Director of Public Prosecutions
Pietermaritzburg
Date of
Hearing
: 04
September 2009
Date of Filing of
Judgment
: 14
September 2009