Brief Summary

Criminal Law — Murder — Complicity — Appellants convicted of murder and robbery following a home invasion resulting in the death of an elderly man — Appellant's defense of necessity rejected by trial court — Evidence showed appellant willingly participated in the crime without duress — Court held that the defense of compulsion was implausible and did not negate mens rea for murder.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a criminal appeal to the then Supreme Court of South Africa (Appellate Division) against convictions and sentences imposed by a trial court sitting with assessors. The appeal concerned both the merits (in limited respects for different appellants) and, importantly, the trial court’s finding that no extenuating circumstances existed on a murder conviction for which the death sentence had been imposed.

The parties were Joseph Madonsela (first appellant), Vusi Dladla (second appellant), and Esau Jabulani Nkosi (third appellant) as appellants, and the State as respondent. The trial court (Strydom J and two assessors) convicted all three on multiple counts arising from the same incident.

Procedurally, the appellants were tried on four counts, namely housebreaking with intent to rob, robbery with aggravating circumstances (as defined in section 1 of the Criminal Procedure Act 51 of 1977), murder, and attempted theft. They were convicted on all counts as charged, save that on count 1 the trial court returned a verdict of housebreaking with intent to steal. On the murder count, the trial court found no extenuating circumstances and imposed the death penalty on each appellant, together with additional terms of imprisonment on the remaining counts. Leave to appeal was granted on different bases: the first appellant obtained leave against all convictions; the second against the murder and robbery convictions; and the third against the murder conviction. All three were granted leave to appeal against the absence of extenuating circumstances.

The general subject-matter of the dispute was the appellants’ criminal liability for an attack on an elderly victim during a break-in and robbery, the proper application of duress/compulsion, the evaluation of accomplice evidence (including the position of a single witness), the application of the doctrine of common purpose to murder liability, and the assessment of extenuating circumstances in relation to the death sentence.

2. Material Facts

It was common cause that on the night of 8 October 1985 three intruders entered the home of Arthur Thomas Boshier, an 84-year-old, physically frail man who lived alone in a housing complex for elderly people known as “Cosy Cottages”. His accommodation consisted of a combined bedroom/living-room and a bathroom. Entry was gained by smashing the glass panel of the outer door using a large, irregular brick weighing approximately 3.4 kilograms.

It was also not disputed that the brick used to force entry was used in the assault that caused the deceased’s death. The deceased was found lying face down next to his bed. The post-mortem report recorded the cause of death as four lacerated head wounds and fractures of the skull causing cerebral haemorrhage. The blood-stained brick was found on the bed near the deceased’s body, and bloodstains were observed on the wall opposite the bed. A bloodstained handprint was proved to be the fingerprints of the first appellant.

After the intruders ransacked the deceased’s room, they attempted to escape using a motor vehicle belonging to Mrs Janet Newby, another resident in the complex. The vehicle was started and moved from the car park towards the premises’ exit gate, but the engine failed near the gate. While the intruders tried to restart it, Mr Cooper, another resident, saw them and shouted, suspecting a theft. He observed two persons abandon the vehicle and run away. Police were summoned and found in the vehicle items including a television set, a blanket, and clothing identified as belonging to the deceased.

Before trial, the second and third appellants each made extra-curial statements to a magistrate. The admissibility of these statements was contested at trial but they were admitted, and their admission was not challenged on appeal. Each statement placed its maker at the scene at the relevant time. The appellate judgment noted that while these statements included admissions proving participation in certain offences, they did not incriminate the second and third appellants on the murder charge.

The principal evidence implicating the second and third appellants on the murder and robbery charges came from the first appellant, who testified and admitted involvement in the offences but advanced a defence of necessity/compulsion, alleging he acted under threat. In substance, his version was that the second appellant produced a “jungle knife” and threatened to kill him if he did not accompany them. According to him, after the group reached the complex, the third appellant procured the brick (carried in a bag), used it to break in, and inside the room the first appellant restrained the deceased while the third appellant struck the deceased on the head with the brick. The first appellant said he maintained his hold because he feared the second appellant would stab him if he disobeyed, and he asserted he did not intend assaulting or killing the deceased.

The trial court rejected the compulsion defence. Notwithstanding that rejection, it accepted the first appellant’s account of what occurred and the roles of the other appellants, while recognising the need for caution because he was an accomplice witness whose evidence implicated co-accused.

3. Legal Issues

The appeal raised a combination of questions of fact, application of law to fact, and value judgment (particularly on extenuation). The central questions were whether the first appellant’s alleged compulsion/duress was reasonably possibly true (a factual and evaluative inquiry affecting unlawfulness and/or intention), and whether his participation nonetheless established the requisite mens rea for the charged offences.

A further central issue was the proper approach to the evidence of the first appellant as an accomplice and (as argued) a single witness, including whether shortcomings in his evidence required its rejection in toto or whether it could be accepted with caution.

In relation to the second appellant, the appellate court was required to determine whether he was correctly convicted of murder notwithstanding that he did not deliver the fatal blows. This entailed applying the doctrine of common purpose, specifically whether the State proved beyond reasonable doubt that he foresaw the possibility that death might result in the execution of the common criminal design and persisted reckless of that consequence.

Finally, the court had to decide whether the trial court correctly found no extenuating circumstances in respect of each appellant. This required a moral and evaluative judgment, including consideration of whether dolus eventualis (found by the trial court) and the appellants’ respective roles in the killing diminished moral blameworthiness.

4. Court’s Reasoning

The appellate court dealt first with the first appellant’s reliance on compulsion. It identified that both submissions advanced for him—complete justification through compulsion, or alternatively a bona fide belief precluding dolo malo—depended on whether compulsion was established as a reasonable possibility. The appellate court endorsed the trial court’s conclusion that compulsion was not established, emphasising that there was no need for the perpetrators to involve an unwilling third person to commit the offences. The selection of a frail elderly victim in an elderly housing complex suggested that two armed intruders could have achieved their objective without the added risk of coercing participation from someone whose reaction might be unpredictable. The court further relied on the opportunities the first appellant had to dissociate himself from the crimes, including at the motor vehicle both before and after the offences, and concluded that the duress account was false and correctly rejected.

The judgment then addressed the acceptance of the first appellant’s evidence against the second and third appellants. It noted that, although the first appellant’s evidence included false elements (his compulsion claim), the trial court accepted his narrative of events. The appellate court recorded that the trial court approached his evidence with the caution appropriate to accomplice evidence, citing the rationale that an accomplice has inside knowledge and may be peculiarly able to present a convincing but false version. It also treated the argument that, as a single witness, his evidence had to be satisfactory in every material respect as overstated, endorsing the approach that credibility is assessed holistically rather than by a rigid formula. The appellate court considered it significant that the second and third appellants did not testify, and that their extra-curial statements confirmed their presence at the scene and that only three persons were involved, limiting the risk of substitution of innocent persons for the true culprits.

On the merits of the murder convictions, the appellate court distinguished between the different appellants’ conduct. Regarding the third appellant, acceptance of the first appellant’s evidence meant the third appellant was the one who used the brick to strike the deceased, which supported a straightforward murder conviction. Regarding the first appellant, the appellate court rejected the argument that restraint of the deceased did not show intent to kill. It relied on the first appellant’s own evidence that he held the deceased on instruction, did not release him after the first blow, and would have held him for as long as the third appellant wanted. With compulsion excluded, the court viewed this as active participation in the lethal assault at a stage when the first appellant could see the deceased was being beaten to death, and held that the murder conviction was justified.

The second appellant’s murder liability required a separate inquiry because he did not deliver the fatal blows. The court accepted that the second appellant produced a knife to intimidate the deceased into handing over money, and that while the deceased was assaulted he maintained a threatening posture with the knife but did not stab. The court held that this conduct was consistent with an intent to rob and not necessarily with an intention to participate in the lethal assault; moreover, had he wished to silence the deceased by stabbing, he had the opportunity. His murder liability therefore depended on common purpose and foresight in the execution of the plan. Applying the cited formulation, the appellate court held the State had to prove participation in a common purpose to commit another crime, foresight of the possibility that death might be caused in executing the plan, persistence despite that foresight, and that death occurred.

On the facts, the appellate court drew an inference of foresight from the circumstances: the third appellant returned with a large brick carried in a bag (suggesting it was intended to be wielded effectively), and the second appellant had no basis to assume the room was unoccupied; his carrying of a “jungle knife” supported the conclusion that he contemplated confronting an occupant. The entry occurred immediately after the glass was broken, and there was no reason for the second appellant to believe the brick was solely for breaking the glass and would not be used against a person. In the absence of evidence from the second appellant about his subjective state of mind, the court concluded that the only reasonable inference was that he foresaw the possibility of death and nevertheless continued to participate. On that basis, his murder conviction was upheld.

On extenuation, the court recorded that the trial court found the form of intent for each appellant to be dolus eventualis. The appellate court accepted that dolus eventualis may, depending on the circumstances, constitute an extenuating factor, and that foreseeability can have gradations: if death is foreseen as no more than a remote possibility, that may be relevant to extenuation. However, in relation to the first and third appellants, the court reasoned that at the time of the actual attack—where the third appellant struck repeated blows with a heavy brick while the first appellant held the deceased—the likelihood of death must have been foreseen at the highest degree of probability, meaning the nature of their intent did not reduce moral blameworthiness. The court further treated the brutal manner in which a defenceless elderly man was killed as a factor militating against extenuation for them.

For the second appellant, the court treated the position differently. It emphasised that he did not participate in the actual killing and did not stab the deceased despite opportunity. It described his dolus eventualis as comprising realisation that there was a possibility, not necessarily a strong one, that the room might be occupied and the occupant killed. The trial court’s principal basis for finding no extenuation in his case was that, during the assault, he did not dissociate himself, which the trial court treated as indicating endorsement. The appellate court held that this conclusion was not warranted. Taking into account the nature of his intent and his non-participation in the brutal assault, the court held that extenuating circumstances ought to have been found for the second appellant.

5. Outcome and Relief

The appeals of the first and third appellants were dismissed. Their convictions and the finding of no extenuating circumstances, with the resultant sentences, were left undisturbed.

The second appellant’s appeal succeeded in part, limited to sentence on the murder count consequent upon a finding that extenuating circumstances existed in his case. His death sentence on count 3 (murder) was set aside and substituted with a sentence of 15 years’ imprisonment.

The court further ordered that the sentence on count 2 (robbery with aggravating circumstances) and six years of the sentence on count 1 run concurrently with the 15-year sentence imposed on count 3.

Cases Cited

Rex v Ncanana 1948 (4) S.A. 399 (A).

S v Hlapezula and Others 1965 (4) S.A. 439 (A).

S v ffrench-Beytach 1972 (3) S.A. 430 (A).

S v Sauls and Others 1981 (3) S.A. 180 (A) (as cited in the judgment).

S v Webber 1971 (3) S.A. 754 (A).

S v Malinga and Others 1963 (1) S.A. 692 (A.D.).

S v Madlala 1969 (2) S.A. 637 (A).

S v Safatsa and Others 1988 (1) S.A. 868 (A).

S v Dladla en Andere 1980 (1) S.A. 1 (A).

S v Robert John McBride (Case No 323/87) (Appellate Division, 30 March 1988) (as described in the judgment).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 1 (definition of “aggravating circumstances”).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The appellate court upheld the convictions of all three appellants for the offences arising from the break-in, robbery, and killing of the deceased, and upheld the rejection of the first appellant’s defence of compulsion. It accepted the first appellant’s evidence implicating the second and third appellants, applying the cautionary approach to accomplice and single-witness testimony, and held that the third appellant was correctly convicted as the assailant who inflicted the fatal blows and that the first appellant was correctly convicted due to his active participation in restraining the deceased during the lethal assault.

The appellate court held that the second appellant, although not a direct participant in the physical killing, was correctly convicted of murder on the basis of common purpose: the only reasonable inference was that he foresaw the possibility of death occurring in the execution of the unlawful plan and nevertheless persisted.

On sentence, the appellate court held that the absence of extenuating circumstances was correctly found in respect of the first and third appellants, given the brutality of the killing and the high degree of foreseeability of death during the attack. However, it held that extenuating circumstances were present in respect of the second appellant, given his non-participation in the actual assault and the nature of the foresight attributed to him, and accordingly substituted the death sentence with a term of imprisonment and ordered partial concurrency with other sentences.

LEGAL PRINCIPLES

The defence of compulsion/duress depends on whether the accused’s claim of coercion is reasonably possibly true on the evidence; where the factual matrix shows unnecessary inclusion of an allegedly unwilling participant and clear opportunities to withdraw, a court may reject compulsion as false.

Evidence of an accomplice must be approached with caution because an accomplice may have motives to implicate others and, due to inside knowledge, may be capable of giving a deceptively convincing account. The cautionary approach does not entail an automatic rejection; it requires careful scrutiny in context, including consideration of corroborative features and the overall probabilities.

A conviction may rest on the evidence of a single witness if, after weighing the merits and demerits of the testimony, the court is satisfied that the truth has been told despite shortcomings, contradictions, or defects; there is no rigid rule requiring perfection in every material respect.

Under the doctrine of common purpose in murder liability, where an accused is party to a common design to commit another crime, guilt for murder depends on proof that the accused foresaw the possibility that death might be caused in execution of the plan, nevertheless persisted reckless of that consequence, and death ensued. Where the accused does not testify as to subjective state of mind, the court may draw the only reasonable inference from objective circumstances.

In assessing extenuating circumstances, dolus eventualis may in appropriate cases constitute an extenuating factor, depending on the degree of foreseeability and the surrounding circumstances; there are gradations of foreseeability, and foreseeability as a remote possibility may bear on moral blameworthiness. The nature of the murder and the manner of its commission, including brutality and vulnerability of the victim, are relevant to the overall moral evaluation and may militate against extenuation, while differences in participation and the strength of foresight may justify differential findings among co-perpetrators.

S v Madonsela and Others (529/87) [1988] ZASCA 109 (26 September 1988)