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[1989] ZASCA 37
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S v Botamane (266/88) [1989] ZASCA 37 (30 March 1989)
266/88
/mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
ALFRED BOTAMANE
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: CORBETT CJ, BOTHA, E M GROSSKOPF,
VIVIER et KUMLEBEN JJA
HEARD
: 22 MARCH 1989
DELIVERED
:
30 MARCH 1989
JUDGMENT
KUMLEBEN JA/...
1 .
KUMLEBEN JA
Shortly before daybreak on the morning of 7 October 1985 the appellant and
one Charles Adams went to the home of Mr Brey in Retreat,
Cape Peninsula. As Mr
Brey opened the door at the back of his house he was attacked by them. The
appellant stabbed him. His son,
Ebrahim, who came to his father's assistance,
was at a later stage fatally shot by Adams. This led to the appellant being
charged
in the Cape of Good Hope Provincial Division with the murder of Ebrahim
Brey and with the attempted murder of Mr Brey. (Adams had
not been traced at the
time of the trial and for that reason did not feature as a co-accused.) On the
first count the appellant was
convicted as charged. The court (Williamson J
sitting with two assessors), having found extenuating circumstances, sentenced
him
to 12 years imprisonment,of which 4 years were conditionally
2/...
2.
suspended. (The verdict on the other count was one of
assault with intent to cause grievous bodily harm in respect of which a sentence
of 2 years' imprisonment was imposed.) Leave was granted by the court a
quo
to appeal against the conviction on the murder charge.
The shop of Mr Brey was next-door to his home. A plan depicting the two
buildings and the intervening courtyard area was handed in
as Exhibit E. The
layout of these buildings and their precincts was also explained by Mr Brey in
evidence. It appears thatl between
the back of the house and the back or side of
the shop there is an enclosed yard with a passage way leading to the street.
What appears
to be the back verandah of the house is enclosed by a wrought-iron
screen which is shown on the photograph Exhibit D1 . What was
referred to in
evidence as a "back gate" is a door in the screen made of the same
3/...
3. material. This door gives access to the yard from the
house. Diagonally opposite this screen on the other side of the yard is a
store-room shown on the photograph Exhibit D2. Its "wall" facing the yard
consists of a similar wrought-iron screen with the same
sort of door set in it.
However, as appears from Exhibit D2, the screen does not extend to the ceiling
or roof of the store-room.
Mr Brey and his wif e gave evidence for the State. They were held to be
truthful and reliable witnesses. This finding was not challenged
on appeal.
Their evidence is to the following effect. That morning, as Mr Brey unlocked the
screen door of the verandah and was about
to open it, he noticed two men, who
turned out to be the appellant and Adams, facing him on the other side of this
door. They wore
balaclava caps partially covering their faces. Adams
4/...
4. was armed with a revolver and the appellant with a
knife. Mr Brey, startled by this confrontation, asked them what they wanted.
Whereupon, without either of them replying or saying anything, Adams fired three
or four shots at point blank range through the screen
door. None struck Mr Brey.
He reacted by forcefully pushing the door forward in the face of his assailant.
With that Adams turned
on his heels and ran across the yard to the store-room,
apparently not realising that this did not afford an escape route. Mr Brey,
undaunted, chased after Adams. The appellant was still standing, knife in hand,
in the yard near the wrought-iron door of the house.
As Mr Brey passed him he
was stabbed by the appellant. The wound was not a serious one and Mr Brey was
not deterred by it. He saw
that Adams had entered the store-room and proceeded
to lock him in it. (Unspent revolver bullets were subsequently found in the
store-room
indicating that Adams probably
5/...
5. reloaded the revolver there.) In the meantime Mrs Brey
and Ebrahim, both of whom had been alerted by Mr Brey's cries of alarm,
and no
doubt by the shots which followed, had come into the yard. Ebrahim caught hold
of the appellant from behind and held him.
Mrs Brey picked up a broomstick and
struck the hand of the appellant which held the knife. When it dropped, Mrs Brey
picked it up
and took it to the kitchen. At this point Mr Brey, returning from
having locked the store-room, saw the appellant held by his son.
He (Mr Brey)
was all for setting upon him with the broomstick. Ebrahim, however, restrained
his father because at that stage the
appellant was offering no resistance. He
was placed in a toilet situated in the yard. Since the door could not lock, Mr
Brey stood
guard outside while Ebrahim, on his father's instructions, went to
telephone the police. As he crossed the yard, going towards the
wrought-iron
door
6/...
6. at the back of the house, Adams emerged from the
store-room. He had escaped from it by climbing through the space above the
screen.
When he was a short distance from Ebrahim he fired a single shot at him.
The bullet penetrated his skull and killed him. Adams made
good his escape
presumably by way of the passage to which I have referred. In due course the
ambulance and police arrived. It would
seem that before the police arrested him,
the appellant had been transferred from the toilet in . the yard to one in the
house which
could be locked.
The appellant gave evidence. Its substance was that he and Adams, both of
whom were at the time unemployed, had been staying together.
That morning early
Adams suggested that they should go and steal at a certain place. He assured the
appellant that they would not
be seen. He knew Adams had a knife on him
7/...
7. but not that he was armed with a revolver. They arrived
at the house. As they were stealing potatoes in the yard, Adams heard a
noise at
a certain door and went to investigate. A single shot was fired. Appellant
intended escaping but before he could do so he
was apprehended. The court had no
hesitation in rejecting his evidence. There were ample grounds for doing so.
Understandably the
evidence of the appellant was not relied upon in the argument
presented on appeal.
From the State case certain inferences are to be drawn. Firstly, despite the
evidence of the appellant to the contrary, their conduct
in confronting Mr Brey
at the screen door, disguised and armed, clearly shows that the two of them had
planned to rob him. When the
shots were f ired at Mr Brey the appellant did not
run away but instead assaulted Mr Brey by stabbing him as he entered the yard.
This conduct points to his
8/...
8.
being party to a pre-arranged plan to commit a robbery. The
objective was probably to overpower Mr Brey and rob him of his possessions
in
his house or at his shop. Secondly, the facts plainly justify the inference that
the fatal shot was fired by Adams in the course
of escaping and in order to do
so. Thirdly, the conclusion is inescapable that the appellant knew Adams was
armed with a revolver.
In addition, the evidence of the State witnesses
discloses that from the time the appellant was caught and held by Ebrahim, he
took
no further part in the unlawful venture nor did he at any stage attempt to
escape.
In convicting the appellant of murder, notwithstanding the fact that he did
not fire the fatal shot, the trial court relied upon the
application of
the doctrine of common purpose as thus stated in S v
Madlala
1969(2) S.A. 637 (A D) 640 F - H:
"Generally, and leaving aside the position of an accessory after the fact, an
accused may be
9.
convicted of murder if the killing was unlawful and there is
proof-
(a)
.....................
(b)
(c) 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) S.A.
692 (A.D.) at p. 694F - H and p.
695;"
(See too
S v Safatsa and Others
1988(1) S.A. 868 (A.D.)
896 G - 897
B, in which the formulation of the legal
position as stated in the above
quoted passage was
approved and affirmed.)
On the facts of this case, with reliance on (c) in the quoted passage of the
Madlala
decision, the court found the appellant guilty of murder. It
concluded that the appellant must have foreseen - in the sense that
he did f
oresee - the possibility that
10/...
10. the revolver might be used with fatal consequences in
the execution of the planned robbery, which necessarily included escaping
from
the scene of the crime.
In the course of argument in the court a
quo
on the question whether
the appellant foresaw the possibility of someone being killed, defending counsel
referred to a passage in
S v Magwaza
1985(3) S.A. 29 (A.D.). In that
case, like the present, two persons set out to commit a robbery in the course of
which the victim
was shot by one of them. At page 41 C - H the judgment reads as
follows:
"In my view the conclusions reached by the trial Court that the appellant knew
that his confederate (a) was in possession of a f
irearm and (b) might use it in
execution of the robbery, are unassailable. But robbery is sometimes
successfully accomplished by
threatening the victim by brandishing an unloaded
firearm. The crucial question is whether when the two intruders entered the shop
the appelant knew as a fact that
11/...
11.
his confederate's firearm was loaded. It is not clear to me that the trial
Court was prepared to make such a finding against the appellant.
The trial Court
found that the appellant's recklessness as to whether or not death might ensue
in the course of the robbery consisted
in part of the appellant's 'failure to
ensure that the firearm was not loaded'. Such an omission on the appellant's
part might well
be censurable but it cannot,I think, serve as a substitute for
his actual subjective knowledge. Although in my view it is not improbable
that
the appellant knew that the firearm in question was loaded, it seems to me that
the meagre evidence of Thandi Zungu and Bongani
as to what the appellant
confided in them, taken together with the rather sketchy observations of Mrs
Momplé and Flora Mthimkulu,
cannot sustain, as the only reasonable
inference, that the appellant knew that the firearm in the possession of his
confederate was
loaded. If the appellant lacked such knowledge then it must
remain a matter for mere speculation whether subjectively the appellant
foresaw
the possibility of the deceased's death in the execution of the robbery. It
follows, in my judgment, that having excluded
Oelofse's evidence of the
appellant's pointing out and the statements by the appellant which accompanied
such pointing out, the remaining
evidence is insufficient to establish beyond
reasonable doubt the guilt of the appellant on the charge of murder. Whether,
and if
so, to what extent, the inference that the appellant bore knowledge of
the fact that his confederate's firearm was loaded would be
strengthened if
recourse to the evidence of Oelofse were permissible, it is unnecessary to
consider. In my
12/...
12.
view, therefore, the appellant was wrongly convicted of
murder."
Williamson J consldered that this dictum was
in
conflict with the exposition of the legal position in
the quoted
passage from
Madlala
' s case and had
difficulty in reconciling them.
It is perhaps more
accurate to say that the requirement in
Magwaza
's
case
appears to place a limitation or restriction upon the
enquiry as to
whether - as stated in
Madlala
's case -
"he foresaw the possibility of one or both of them
causing death to
someone in the execution of the plan".
Be that as it may, notwithstanding
what was taken to be
conflicting authority on the subject, the court
found
that the fact that it was not positively proved that
the appellant
knew that the revolver was loaded, did
not preclude it from holding -as it
did - that the
appellant foresaw the possibility of it being used
with
fatal results.l This conclusion was subsequently
endorsed by a later
decision of this
13/...
13. court in
S v Mbatha en Andere
1987(2) S.A. 272
(AA).
As regards the proposition in the above-quoted passage in
Maqwaza
's case it was said at pages 283F - 284A of the
Mbatha
decision that:
"Na my mening maak hierdie passasie dit by
implikasie duidelik dat die
omstandigheid dat so 'n
socius criminis
nie subjektief kennis gedra
het
van die feit dat die dader se vuurwapen gelaai was
nie, glad nie
tuisgebring moet word onder sy
onverskilligheid of die slagoffer gedood kon
word
of nie. Wat die passasie egter nie duidelik maak
nie is of dit 'n
voorvereiste vir
dolus eventualis
as opsetvorm is dat 'n
socius
criminis
subjektief
kennis moes gedra het van die feit dat die
dader
se vuurwapen gelaai was. Ons reg stel subjektiewe
kennis aan die
kant van 'n
socius criminis
dat die
dader se vuurwapen 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,
"Die feit dat 'n
socius criminus
nie subjektief kennis gedra het van die
omstandigheid dat die dader se vuurwapen gelaai is nie of dat sy mes 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 vuurwapen in die pleeg van
14/...
14.
die roof op die dood van die slagoffer mag uitloop, as een van die fasette van
dolus eventualis
as opsetvorm. Dit is bloot 'n feite-kwessie en nie h
regsreel nie wat relevant is by die oorweging van voorsienbaarheid as h faset
van
dolus eventualis
."
As a matter of fact
it was on the strength of
the decision in
Magwaza
's case that leave to appeal was
granted.
However, Mr van der Merwe, who appeared for
the appellant., conceded that, in
the light of the
subsequent decision, no argument could be presented
along
those lines. Counsel did, however, advance
others in support of the
appeal.
The first argument was directed at the requirement of foreseeability on the
part of the appellant, though on the supposition that
he knew that the revolver
was loaded. Counsel submitted that it was not proved that the appellant foresaw
that Ebrahim might be killed
having regard to the particular circumstances in
which the shooting took place.
15/...
15. Counsel relied, firstly, on the fact that Adams had
been locked up in the store-room and that at that stage it was thought by
all
concerned that he no longer presented a danger to Mr Brey or Ebrahim; and,
secondly, on the fact that the appellant had been
apprehended and in a sense was
no longer involved in the robbery. In these circumstances, so it was submitted,
it is reasonably possible
that appellant no longer foresaw the possibility that
the revolver would be used to effect an escape. It is true that at that stage
such may have been the appellant's state of mind but from the point of view of
his criminal liability this is irrelevant. At the
time he decided to take part
in the armed robbery he foresaw that the revolver might be used for this purpose
with fatal results.
This cannot be gainsaid. That is precisely what happened.
The fact that at a particular stage during
the occurrence, and for a short period of time, its use
16/...
16. appeared to be improbable or remote is, as I have
said, immaterial. In
S v Malinqa and Others
1963(1) S.A. 692 (AD) the
facts were in many respects similar to those of this case. A policeman, in the
course of pursuing the appellants
by car after the commission of the offence,
was shot by one of them. At page 695 A - D Holmes JA observed:
"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, púrsuit
or attempted
capture. Hence, as far as individual
mens rea
is concerned, the shot
fired by accused No. 4 was, in effect, also the shot of each of the appellants.
On the question of intention
to kill, they must have foreseen, and therefore by
inference did foresee, the possibility that the use of the loaded firearm woultl
have fatal consequences. Violence, fire-arms, and death are ever an easy and
sombre trinity, as I observed in
S. v. Masheane and Others
(A.D., 16
November,
17/...
17.
1959). And the appellants were clearly reckless whether death would in fact
ensue or not. Hence the intention to kill must be imputed
to each one of
them."
These observations, and the conclusion on the question of
foreseeability, may aptly be applied to the facts of this case.
In the course
of this argument counsel submitted that the appellant could not have foreseen
the precise manner in which Ebrahim came
to be shot and for this reason the
appellant is not to be held criminally responsible for his death. I doubt that
the circumstances
relied upon can be properly described as the "manner" in which
the deceased was killed: his death arose f rom the use of the revolver
the
possibility of which - as has been pointed out - was foreseen. In any event, as
was stated in this court in
S v Msiza
(Case 326/83: judgment delivered on
29 May 1984 and reported in 1984(1) Prentice Hall H 116):
18/...
18.
"Selfs indien die dood van die oorledene, wat as 'n moontlikheid voorsien is,
ingetree het op h wyse wat nie presies dieselfde was
as wat appellant voorsien
het nie, sal
dolus eventualis
nogtans aanwesig wees."
This
was said with ref erence to an accused who was actually responsible for the
killing of the deceased but applies equally to an
associate in the context of
common purpose. See too
R v Lewis
1958(3) S.A. 107 (AD) at 109 H and
S
v Nhlapo and Another
1981(2) S.A. 744 (AD) at 750 E - G. In the
last-mentioned decision van Heerden AJA said in reference to the facts of that
case:
".... I have no doubt that the robbers must have foreseen the possibility that
one of them might kill one of the guards, and that
they were reckless as to
whether or not this consequence ensued. If they did not foresee the further
possibility of a guard being
killed by a shot fired by one of his co-guards,
the guestion would arise whether the unforeseen manner in which a foreseen
consequence was caused, is legally relevant; in other words,
whether dolus
eventualis requires foresiqht not only of a conseque
nce but
19/...
19.
also of the causal sequence leading to the consequence.
See, in regard to
the distinction drawn in German law between material and immaterial deviations
from the foreseen causal chain,
Jescheck
Lehrbuch des Strafrechts,
Allgemeiner Teil
2nd ed at 232-3. In view of the conclusion at which I have
arrived, I find it unnecessary, however, to consider this question." (My
emphasis.)
Assuming that the question is to be affirmatively
answered, in the present case the "causal sequence leading to the consequence"
was
the use of the revolver in order to escape and, I repeat, this was foreseen
as a possibility.
In South African Criminal Law and Procedure (Second Ed.) Vol. I at page 150
the authors point out that:
"Where the manner of the occurrence of the consequence is very different from
that foreseen by the accused, his liability or otherwise
is likely to turn on
the question of causation rather than of
mens
rea
."
Causation was in fact the basis of the appellant's
alternative argument. it was founded on substantially
20.
the same facts as those to which I have referred,
namely:
(a) that the shooting took place after Adams
had been locked in ths
store-room; and (b) that at
that stage the appellant had - as it was
put
dissociated himself from the criminal venture on which
they had both
embarked.
Whatever doubts may have existed as to the legal position before the decision
in
S v Safatsa
(
supra
), it is now settled law that a participant
who, like the appellant, agrees beforehand to the commission of an offence, in
this case
the robbery, may be found guilty of murder without his conduct having
caused or contributed causally to the death of the deceased.
As was stated at
page 896 D of that decision:
" . . . . 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
(provided, of course, that the necessary
mens rea
is present)."
21/...
21 . In the instant case - as I have indicated - the
com-pact to rob and
mens rea
on the part of the appellant were proved.
Thus, the appellant is criminally liable for the death of the deceased unless it
can be
said that the act of Adams in killing the deceased fell outside the
compass of the common purpose, that is, was not causally connected
with the
robbery. Thus stated the question virtually answers itself.He killed the
deceased at the scene of the crime in order to
escape. The short interval when
he was in the store-room (which incidentally he apparently put to good use by
reloading the revolver)
cannot possibly be said to have severed the causative
link between the robbery and the fatal shot. The causal connection, one notes
in
passing, is far more direct as to time and place than that which gave rise to
the conviction of the appellants in the
Malinga
case (
supra
.)And
unlike the situation in the case of
S v Talane
22/...
22. 1986(3) S.A. 196 (AD), the shot was not fired when
the
danger of being arrested in the course of escaping had passed (see pages
207E - 208A).
As to the fact that the appellant was apprehended shortly before the shot was
fired, I fail to see how this can bear upon the question
of causation. In the
first place it cannot be said on the evidence that the appellant
voluntarily
decided against continued participation in the robbery, which
at that stage was in the nature of things restricted to escaping. In
his
evidence he did not say that he had taken such decision. When he was caught by
Ebrahim, he simply remained caught. In any event,
were a
socius
in the
course of the commission of an offence to decide against further participation,
such decision would not necessarily exempt
him from liability for the
foreseeable
consequences
of the prior unlawful acts in
23/...
23.
which he had been actively involved. In the present context,
at the stage when the appellant - let it be assumed - dissociated himself
from
the robbery, a fatal shooting by his associate in the course of escape was such
a possible consequence. It is, however, unnecessary
to consider this question
more fully since, as I have said, there is no evidence justifying the conclusion
that the appellant did
in fact voluntarily elect to dissociate himself.
The appeal is dismissed.
M E KUMLEBEN JUDG
E
OF APPEAL
CORBETT CJ)
BOTHA JA)
E M GROSSKOPF JA) - Agree
VIVIER JA)