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[2024] ZANCHC 81
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S v Nkeane and Others (CA&R17/2024) [2024] ZANCHC 81 (1 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
CA&R17/2024
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
THE
STATE
and
TSHEPO
JEFFREY NKEANE
ACCUSED 1
ANDILE
MESHACK MERAHE
ACCUSED 2
VELO
LOLATA
ACCUSED 3
Heard
on:
In chambers
Made available on:
01/08/2024
Summary:
This is a special review in
terms of s 304(4) of the Criminal Procedure Act, 51 of 1977 (CPA).
The trial Court stopped proceedings
and the accused were
committed for sentence by a regional court in terms of s 116(1)(a) of
the CPA. The regional magistrate had
doubts with the conviction of
accused 3 on count 1 and accused 1 on count 2.
ORDER
(a) The conviction of
accused 3 on count 1, of robbery with aggravating circumstances, is
overturned.
(b) The conviction of
accused 1 on count 2, of assault with intent to do grievous bodily
harm on S[...] O[...], is confirmed.
(c) The matter is
referred to the regional court to sentence the accused as follows:
accused 1 and 2 on all three counts and accused
3 on counts 2 and 3.
Coram: Mamosebo J et
Lever J
JUDGMENT ON SPECIAL
REVIEW
MAMOSEBO
J
[1]
The three accused appeared before the district magistrate Makume in
Jan Kempdorp on
three counts: robbery with aggravating circumstances,
and two counts of assault with intent to do grievous bodily harm. The
trial
court, having found that they acted in the execution of a
common purpose, convicted all three accused as charged on 20
September
2023.
[2]
The trial court stopped the proceedings and the accused were
committed for sentence
by a regional court in terms of s 116(1)(a) of
the CPA which stipulates:
‘
Committal
of accused for sentence by regional court after trial in magistrate's
court
(1) If
a magistrate's court, after conviction following on a plea of not
guilty but before sentence, is of the opinion-
(a)
that the offence in respect of which the accused has been convicted
is of such a nature or magnitude that it merits
punishment in excess
of the jurisdiction of a magistrate's court.’
[3]
Having queried the trial court in respect of the conviction of
accused 3 and dissatisfied
with the status of the conviction, the
regional magistrate referred the matter on special review on 14 March
2024 in terms of s
304(4) of the CPA for a further directive. The
trial court explained that reference was made to accused 3 as Shusha
when his correct
name or nickname is Makaveli or Vele or Velelo. The
reference was meant for accused 3 and the court alluded to an honest
and innocent
mistake for having confused the two names.
[4]
The regional magistrate was supposed to record the reasons for his or
her opinion
when transmitting the record to the registrar as
contemplated in s 116(3)(a) of the CPA but did not so. The
regional magistrate
has doubt in the conviction of accused 3 in count
1 of robbery with aggravating circumstances and of accused 2 in the
assault of
S[...] O[...] with intent to do grievous bodily harm.
We enjoined the regional magistrate do so. We further sought an
opinion
from the office of the Director: Public Prosecutions,
Northern Cape. We are grateful for the insightful opinion by Adv JJ
Cloete.
[5]
The trial court relied on the doctrine of common purpose as stated
hereinbefore. Buys
J, concurred in by Kriek JP and Van der Walt J in
S v Nooroodien en Andere
1998 (2) SACR 510
(NC) at 517f-g
(headnote 513d-f, the requirements for active participation are the
following:
(a)
the participant must have been present at
the scene where the violence was committed;
(b)
he must have been aware of the assault upon
the victim;
(c)
he must have intended to make common cause
with those who were actually perpetrating the assault;
(d)
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;
and
(e)
he must have had the necessary
mens
rea
in respect of the offence.
See
also
S v Mgedezi and Others
1989
(1) SA 687
(A) at 705I – 706B
[6]
To address the concerns by the regional magistrate, I will briefly
refer to the relevant
of the evidence by the State. First, I deal
with the conviction of accused 3 on robbery with aggravating
circumstances. The complainant
in this count is Mr Piet Jasson. His
testimony was that he and his friends were approached by a group of
people at night. Of this
group, 3 persons approached him, separating
him from his friends. Accused 3 was not part of these three. Those
who remained in
the larger group were armed with pangas but Jasson
did not observe if accused 3 was also armed. Jasson could only
identify accused
3 by his eyes because he was wearing a mask. After
he was robbed of his cellphone the larger group followed the group of
three.
When cross-examined, Jasson testified that accused 3 was not
carrying a panga. He also said that when he was robbed Fresh,
Ngonyoko,
Susha, Fanie, Vele were there but accused 3 stood aloft.
Whereas Clifford Mogakwe was called to corroborate the evidence of
Jasson,
he could not take the State’s case any further in
implicating accused 3.
[7]
The concern by the regional magistrate in accepting the
non-involvement of accused
3 cannot be faulted. The State has not
succeeded in proving his guilt on robbery with aggravating
circumstances beyond reasonable
doubt. His liability cannot be found
by his mere presence at the scene. Reverting to the doctrine of
common purpose he has not
satisfied the requirements as enunciated in
Nooroodien en Andere
and
Mgedezi.
There is no evidence
implicating accused 3 in the commission of the robbery.
[8]
Secondly, I look at the conviction of accused 1 on count 2 of assault
on S[...] O[...]
with intent to cause him grievous bodily harm.
His testimony is simply this. He was at his home when someone knocked
on his
door. It was accused 1 accompanied by accused 2 and 3. Accused
1 enquired from him the whereabouts of his daughter. All the three
accused were armed with knives. The accused conversed in a language
that he did not understand. After this conversation, accused
3
stabbed him. When O[...] attempted to flee accused 1 stabbed him on
the head. O[...]’s girlfriend tried to intervene but
was
stabbed by accused 1. After the stabbing O[...] and his girlfriend
were chased by the group including accused 1 but they managed
to flee
to the police station. Later that same day, after they had
reported the incidents and received medical treatment,
O[...] was
further threatened by accused 1.
[9]
There can be no doubt that the actions of accused 1, in concert with
accused 2 and
3, satisfies the requirements of common purpose in the
assault of O[...] as acts of association, assessed against this
background:
(a) he
was armed with a knife;
(b)
the search for his daughter led him to play a leading role in
confronting O[...];
(c) he
stabbed O[...];
(d) he
stabbed O[...]’s girlfriend when she tried to intervene; and
(e) he
chased and threatened O[...] after the assault.
[10]
To summarise: The State has not made out a case against accused 3 in
respect of count 1 (robbery
with aggravating circumstances) and his
conviction stands to be overturned. Accused 1 and 2 should be
sentenced on all three counts.
In as far as accused 3 is concerned,
he should be sentenced on counts 2 and 3, that is, on both counts of
assault with intent to
do grievous bodily harm.
[11]
On a conspectus of all the evidence, the submissions of the trial
court, regional magistrate
and the opinion of the Director Public
Prosecutions and all the authorities considered the following order
is made:
(a)
The conviction of accused 3 in count 1, of
robbery with aggravating circumstances, is overturned.
(b)
The conviction of accused 1 on count 2, of
assault with intent to do grievous bodily harm on S[...] O[...], is
confirmed.
(c)
The matter is referred to the regional court to sentence the accused
as follows: accused
1 and 2 on all three counts and accused 3 on
counts 2 and 3.
MC MAMOSEBO
JUDGE OF THE HIGH
COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
I concur
L LEVER
JUDGE OF THE HIGH
COURT
NORTHERN CAPE
DIVISION, KIMBERLEY