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[1987] ZASCA 18
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S v Nkosi (363/1986) [1987] ZASCA 18 (26 March 1987)
LL
Case No 363/1986
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ERIC NKOSI
Appellant
and
THE STATE
Respondent
CORAM
: JOUBERT, SMALBERGER JJA et STEYN AJA
HEARD
: 26
FEBRUARY 1987
DELIVERED
: 26 MARCH 1987
JUDGMENT
/
STEYN AJA
...
2.
STEYN AJA
:
Appellant and a co-accused, Hamilton Thungo, were arraigned in the
Witwatersrand Local Division on February 3 1986 before O'DONOVAN
J and two
assessors on two counts, one of murder and the other of robbery with aggravating
circumstances. On the count of mur= der
it was alleged that they murdered Petrus
Coetzee du Plessis ("the deceased") at Doornfontein in the dis= trict pf
Johannesburg on
the 22nd April 1984, and on the robbery count that they robbed
him under aggravating circumstances at the same time and place of
a cash=box
containing approximately R1 094,00 and of a light Ford Cortina van no CFF 363
T.
They pleaded not guilty to both counts and each testified in own defence.
Appellaht denied having been involved in any way in either
of the offences and
having been in Doornfontein on the said date. But on the 13th June 1984 he made
a statement to a justice
/of ...
3.
of the peace in the person of Capt P.T. Venter of the South African Police,
Booysens, in which he admitted that he was at the scene
of the aforesaid crimes
on the stated date, that he had then been in the company of Thungo and a third
person, Jackson Solly, and
that he drove off with them from the scene in the
Cortina van, but he nevertheless denied any complicity in either the murder or
the robbery. This statement was admitted in evidence after a protracted
"trial=within=a=trial", during which its admissibility was
contested. On June 16
1984 appellant also correctly pointed out to Major C.H.W. Earle of the South
African Police, Brixton, the scene
of the crimes in Davies Street, Doornfontein,
and also the points where he had been left by Solly and Thungo at the corner of
Moseley
and Davies Streets about 50 metres from the aforesaid scene and within
sight thereof, and where deceased's van was abandoned at Doornfontein
railway
station, about 400 metres from the scene of the
/crimes ...
4.
crimes.
The trial court disbelieved appellant and re= jected his evidence of
non=involvement and absence from Doornfontein and also the exculpatory
portions
of his statement, and convicted him and Thungo on both counts. In respect of the
murder the court found no extenuating circumstances.
Appellant and Thungo were
then each sentenced to death for the murder and to eight years' imprisonment for
the robbery. Both applied
for leave to appeal against their convictions and
sentences but their applications were refused by the learned Judge.
Thereafter appellant was granted leave by this Court in terms of section 316
(8) (c) (ii) of Act 51 of 1977 to appeal, but only against
the murder conviction
and the finding that there were no extenuating circum= stances. By necessary
implication leave was also granted
to appeal against the death sentence imposed
in consequence of that finding. The leave granted in
/respect ...
5.
respect of the murder conviction was, however, limited to,"the
finding that the applicant acted with the other accused in the execution
of a
common purpose to murder the deceased." No leave having been granted to appeal
against the conviction of robbery with aggravating
circumstances the findings of
fact upon which that con= viction is based cannot now be challenged.
To determine the ambit of the appeal now before this Court it is necessary to
first establish what the findings of fact are upon which
the robbery conviction
is based. Those findings were summarised as follows by the learned Judge in the
final paragraph of the judg=
ment on the merits:
"The Court finds that this was a care= fully planned robbery in which a
particular rôle was allotted to each of the three persons
and that the
first and second accused knew that Jackson was armed with a revolver which would
be used if it became necessary to do
so, to overcome the resistance of the
deceased."
/Then ....
6.
Then, also introducing the basis for the murder convic= tion,
the summary continues in the following terms:
"On the basis that they proceeded nonetheless and recklessly as to whether
somebody might be killed in the process of the furtherance
of a common purpose
to commit a robbery.
The Court finds each of the
accused guilty of murder as charged on the first count, as well as guilty of
robbery with aggravating
circumstances on the second count."
(Although a fullstop appears in the transcript of the record after the words
"common purpose to commit a robbery" in the second portion
of the above
quotation, it is to my mind clear from the flow of the context that it should be
a comma.)
The "Jackson" referred to in the summary is the aforementloned Jackson Solly.
He was not charged and did not give evldence in this
matter and was at thê
time of the trial being held in maximum security at the Central Prison in
Pretoria.
/The ...
7.
The trial court found that the deceased was shot and killed by
Jackson Solly with a .38 Special Arminius revolver during the course
and for the
purpose of the robbery.
Appellant will be guilty of murder if he sub= jectively foresaw the
possibility of Jackson using the firearm to shoot and kill somebody
in the
execution of their common purpose to rob and nonetheless recklessly persisted in
the furtherance thereof. The trial Court
found that to have been proved beyond
reasonable doubt. The correctness or otherwise of that finding must now be
decided. To do so
requires a wide review and consideration of the evidence. But
in that pro= cess it must be borne in mind that it is not a requlre=
ment of our
law that it be proved beyond reasonable doubt that appellant knew that Jackson's
flrearm was loaded. This was made clear
by JOUBERT JA in the
/recent ...
8.
recent and as yet unreported decision of this Court in
Mathews Mbatha en
Andere v Die Staat
wherein the judgment was handed down on November 27 1986.
In considering
S v Magwaza
1985 (3) SA 29
A, wherein it was held that
proof of such knowledge was neces= sary, JOUBERT JA said the following at p 41
of the judgment.
"Ons reg stel subjektlewe kennis aan
die kant van 'n
socius criminis
dat die
dader se vuurwapeh gelaai is of dat sy
mes skerp is nie as "n
voorvereiste vir
dolus eventualis
as opsetvorm nie.
Daar is geen
regsnorm of regsbeginsel
wat sodanige subjektiewe kennis as
'n
voorvereiste vir
dolus eventualis
stel
nie,
"
/At ...
9.
At 42 - 43 the learned Judge of appeal added the follow= ing:
"Die feit dat 'n
socius criminis
nie sub= jektief kennis gedra het van
die omstandigheid dat die dader se vuurwapen gelaai is nie of dat sy mes nie
skerp is nie kan
wel relevant wees by oorweging van die vraag of die
socius
criminis
die moontlikheid subjektief voorsien het dat die dader se
aanwending van die vuur= wapen in die pleeg van die roof op die dood van
die
slagoffer sal uitloop, as een van die fasette van
dolus eventualis
as
opsetvorm. Dit is bloot 'n feite=kwessie en nie 'n regsreël nie wat
relevant is by die oorweging van voor= sienbaarheid as
'n faset van
dolus
eventualis
."
The following are the salient facts
emerging from the evi= dence accepted by the trial Court, with which acceptance
no fault can be
found.
Jackson Solly was no stranger to appellant and Thungo, having been the lover
of the former's sister and the latter having become acquainted
with him when he
was a petrol attendant at the garage in Fordsburg which Thungo used to
frequent.
/On ...
10.
On the late afternoon of Sunday, April 22 1984, the three of them proceeded
on foot from Fordsburg to their destination at no 19 Davies
Street,
Doornfontein, a distance of several kilometers. That destination was the
Vita=Freeze Icecream depot of which deceased was
then the manager. The business
conducted at that depot was inter alia the sale of icecream by vendors using
pedal= carts for that
purpose. The
modus o
perandi was the following. The
vendors collected their supplies at the depot, sold their wares to the public in
the streets of the
adjacent areas and returned at end of day to trans= fer
unsold icecream to the refrigerators at the depot and hand over their takings
for the day. These monies were placed by the manager in a cash=box and taken by
vehicle to the main office at the factory. This was
the settled procedure on
every day of the week, including Sundays. The cash was usually taken to the
factory between 19h00 and 20h00.
And it was deceased's custom
/to ...
11.
to use his Ford van for this purpose. At that time of the eyening a
considerable number of vendors were usually still present in and
in front of the
depot, which was normally locked by an employee, Rackson Mashekeng, after the
manager's departure with the cash.
The van was usually parked in front of the
depot in Davies Street which runs North - South and is one=way in a northerly
direction,
ending in a cul=de=sac at Doornfontein station, 400 m from the depot,
which is on the western side of Davies Street.
On the evening in question the van was parked in front of the depot facing
north towards the station. The driver's door was consequently
on the street side
of the van. Appellant, Jackson Solly and Thungo arrived at the intersection of
Moseley and Davies Streets shortly
after 19h00. The van was then parked as
aforesaid and there was approximately 20 icecream vendors still in and in front
of the depot,
some of them engaged in a card
/game ...
12.
game at the vehicle entrance about 6 paces from the depot's
front door. It was already dark but the area was well=lit by street lights
and
clearly vislble from the aforementioned intersection.
Appellant was left at the street corner at that intersection which, as stated
above, is about 50 m from where the van was parked.
Jackson and Thungo then took
up a position across the street, directly opposite the van.
About a quarter of an hour later the deceased emerged from the depot's front
door carrying the cash-box containing the day's takings,
was greeted by certain
of the card players and proceeded round the back of the van to the driver's
door. At the same time Jackson
and Thungo crossed the street and as the deceased
got to the driver's door he was grabbed from behind round the neck by Jackson
who
then forthwith shot him in the
/head ...
13.
head at point blank range. He was killed instantly and fell
down at the side of the door. When Mashekeng came out of the depot after
the
shot he was threatened with the revolver by Jackson who told him to "voertsek",
which he immediately did. Jackson and Thungo
then pulled the deceased's body
clear of the van, Jackson toók the cash=box and he and Thungo got into
the van, Thungo taking
the driver's seat. Appellant, who had remained at the
street corner, then joined them and they drove away at high speed, Thungo
driving.
They raced through two stopstreets, stopped at the station where they
abandoned the van in the dead=end and fled further on foot
with the cash=box and
the van's keys, to which the key of the cash=box was apparently attached.
Shortly thereafter they opened the
cash=box and each received a portion of the
contents. In his aforemen= tioned statement appellant admitted that his share
was R150=00.
/The ...
14 .
The trial Court made the following findings, which, despite argument to the
contrary addressed to us, we have no reason to differ
from.
The three partlcipants acted throughout as a team in the execution of their
common purpose and clearly knew that they were engaged
in an extremely dangerous
operation in the process of which they would as it were have to snatch the meat
out of the lion's maw.
They would undoubtedly have had to act with great and
effective speed to successfully take the cash and escape in the van before
they
could be set upon by the icecream vendors and depot staff present in con=
siderable numbers in their immediate vicinity. For
that they needed an
instrument sufficiently effective to immediately overpower the deceased and keep
the ven= dors and staff at bay.
Under the circumstances the most appropriate
instrument would have been a loaded firearm. And it had to be used, and if
necessary
/fired ...
15.
fired, by one or other of those members of the team whose
task it was to take the cash and the van.
In his extra=curial statement appellant admit= tel that he was at the street
corner for about 15 minutes before the shot was fired.
During this period he and
hls two team mates were afforded an ample opportunity to assess the situation
and they could clearly have
done no other than realise subjectively that the
opera= tion in which they were engaged could not be successfully concluded
without
the use of a firearm. And that appellant saw deceased being shot by
Jackson and disposed of as aforesaid, is clear beyond any reasonable
doubt. Even
if appellant did not before the shot was fired subjectively know that the
revolver was loaded the lack of such knowledge
does not by itself mean that he
did not have the intention to murder. His conduct subse= quent to the shooting
in running to the
stationary van; rejoining the team, escaping with them in the
van and
/sharing ...
16.
sharing in the spoils of the robbery without any objec= tion
or sign of surprise, hesitation or remorse however indicate, also beyond
reasonable doubt, that he in fact knew at all relevant times that Jackson had a
firearm, that he subjectively realised the likelihood
of it being loafled and
the possibility of Jackson using it to kill somebody during the course of the
robbery, and that he nevertheless
continued to participate in the execution of
their common purpose reckless whether that happened or not. That amounts not
only to
an intention but also to a common purpose to murder. Appellant was
therefore rightly convicted of murder and the appeal against that
conviction
must fail.
As to the existence or otherwise of extenuating clrcumstances the trial Court
gave no reasons for its finding that none existed. Such
a finding is one on a
question of fact.
The main grounds of extenuation advanced are
/that
...
17.
that appellant was convicted on the basis of dolus
eventualis
, that he played only a minor role in the robbery and "did not
pull the trigger", that he was still relatively young and only educated
to a
modest degree, and that at the time of the murder he had been unemployed for a
considerable time. I am not con= vinced, having
regard to these grounds either
indivi= dually or cumulatively, that they reduce the moral blame= worthlness of
the appellant in the
circumstances of the present case.
The appeal is dismissed.
M.T. STE
Y
N
AJA
JOUBERT
CONCUR
SMALBERGER