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1990
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[1990] ZASCA 10
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S v Nzo and Another (501/86) [1990] ZASCA 10; 1990 (3) SA 1 (AD); [1990] 2 All SA 181 (A) (8 March 1990)
IN THE
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the
matter between
RUFUS
NATO
NZO
FIRST APPELLANT
DOUGLAS
MNYISILE
TYUTYU
SECOND APPELLANT
and
THE
S
TATE
RESPONDENT
CORAM : HEFER, NESTADT et STEYN
JJA.
HEARD : 23 NOVEMBER 1989.
DELIVERED : 8 MARCH 1990.
JUDGMENT
BY J J F HEFER JA.
1.
HEFER
J
A :
From the
second half of 1981 to May
1983
a group
of
terrorists operated in Port Elizabeth.
They
had been
sent by
the African National Congress ("the
A
N C") and
had
infiltrated the country from Lesotho. First to ar-
rive, were
James and Walk Tall. They were followed in November 1982 by the
present first appellant and two con-federates, Joe and
Mkuseli.
Shortly thereafter Walk Tall returned to Lesotho and írom then
onwards first appellant was the leader of the group.
Second
appellant, a member of the A N C who was employed in the city, acted
as the group's so-called underground contact. In that
capacity he
arranged for their accommodation in the homes of local residents and
took charge of and saw to
/2
2. the
concealment of considerable quantities of arms and explosives
despatched to him from Lesotho for use by the terrorists. True
to
custom the group concentrated its attention on public buildings like
those in which the magistrates' courts and the Administration
Board
were situ-ated; through its activities these buildings as also a
shopping centre and a railway track at Swartkops were ex-tensiveiy
damaged by explosions ín which a number of people were
injured. A fuel depot was selected as the next tar-get but before it
could be attacked certain íncidents oc-curred which caused a
dramatic turn of events.
James
was
killed
in
January
1983 in
the
explosion
in
the
Administration
Board
building
in
New
Brighton.
Be-
fore his
death
he had been
billeted
in
the
house
of
Vukile
/3
3.
Tshiwula.
On 10
April
1983
Mrs
Tshiwula,
whose mar-
riage
had
suffered
as a
result
of
h
é
r
husband's
asso-
ciation
with
the
group,
threatened
to
lay
a charge a-
gainst
Tshiwula
for
having
harboured
James. The
threat
was
uttered
in
the
house
where
first
appellant
was
staying
and was
overheard
by him.
He
reported
it to
Joe who warned Mrs
Tshiwula
that
he would
shoot her were she to "combine
her
family
affairs"
with the
terrorists
since
she
knew
that
he was
a
terrorist
him-
self.
Shortly
afterwards
Tshiwula
left
his
wife
and
three
weeks
later,
on
the
evening
of 8 May 1983, Joe murdered Mrs
Tshiwula.
During
the
morning
of 8 May 1983
first
appel-iant happened to pass
through
Aliwal
North
en
r
oute to
/4
4.
Lesotho when he was accosted by members of
the local
security
branch
and found to be
in
possession
of an
identity
docu-ment that had
apparently
been tampered
with.
Upon
being
questioned
about
the
document he
revealed
to
the
p
olice
that
he had been
trained
as a
terrorist
and that he had been
invol-ved in the
terrorist
campaign in Port Elizabeth. (His disclo-
sures
will
later
be
dealt
with
in
detail.)
As a
result
of
information
that
he gave
the
police
the
following
day,se-
cond
appellant
was
arrested.
Several
other
arrests
followed
but
Joe
managed to escape to Lesotho and was
never
brought to justice.
The
appellants
(as
accused Nos 1 and 2) and
nine
co-ac-
cused
were
subsequently charged in
the
Eastern
Cape
Provincial
Division
with
a
variety
of
offences
including
the
murder of
Mrs
Tshiwula.
On
the
murder
charge (count 7)
the
appellants
/5
5.
alone were
convicted. With leave granted by the trial judge they have now
appealed against their convictions and sentences on that
count.
The trial
court rightly found that the appel-lants could not be convicted of
the murder as co-perpe-trators since neither of them
had taken any
part there-in. The crime was nevertheless found to have been
com-mitted with the aim of preventing the deceased from
giv-ing
information to the police that could compromise the members of the
group and their local supporters and im-pede the successful
performance of their task. It was corrmitted, the court found, in the
execution of the com-mon purpose. Since the murder had been
foreseen
by the appel-lants and since they had associated themselves with and
/6
6.
persisted
in furthering the common design despite such fore-
sight,
it was
an
act
for which they were
legally
responsible.
How
the
conclusion
was
arrived
at
that
they
had
foreseen
the
possibiiity
of
the murder and were
responsible
for it appears
from the
following passages from the court's judgment:
"Turning
to the facts, there is no evidence here of a common purpose to kill
or to attack or in-jure, whether aimed at the deceased
or anyone
else. What did exist, however, was a common purpose on the part of
the terrorists and some
accused
to commit acts of sabotage, in the exe-
cution of
which design the possibility of cer-tain categories of fatality must
have been fore-seen and by inference, were foreseen
by the
par-ticipants to that common purpose. This conclu-sion is based on
the extent and locality of the acts of sabotage proved
to have been
attribu-table to the group concerned, the fact that these were going
to be effected by explosives, and the possession
by the terrorists of
lethal weaponry.
Having
indicated further that the parties to the common
/7
7. purpose
must have foreseen the possible - if not the probable - death of
those who might come within the range of the explosions
and others
who might try to forestall them, the trial judge proceeded as
follows:
As to what
must have been foreseen as re-gards potential or likely informers
there is evi-dence that ANC pamphlets have described
as trai-tors
certain persons who have given evidence as State witnesses in
prosecutions in which the ac-cused have been ANC members
or
supporters. In those pamphlets it has been urged that such wit-nesses
be killed. Other ANC publications have advocated that informers
be
treated as traitors.
The
conclusion is justified that the at-
titude of
the organisation towards informers would have been no less
belligerent towards any-one who threatened to give information
about
its activities, or about its supporters and what they were doing.
Indeed, in that sort of situation, there would be even more
reason to
take action before any disclosure were made rather than af-terwards.
The organisation's attitude in these general respects
must have been
known to the ter-
8.
rorists
and to accused nos. 1 and 2, all of whom were members of the ANC and
must have known from the inside, as it were, how those
at 'the head
of the organisation thought and acted.
In the
context of the mission itself, on which the terrorists concerned were
engaged, the need to prevent disclosure being made by
a threate-ning
informer would clearly have been keenly felt. They stood to be
exposed far away from their base and the secrecy and
success of their
mission would thereby be endangered. This risk was one that they must
have foreseen before ever they entered
South
Africa on this mission Another per-
son who
would necessarily have been aware of the problem of what can be
called a security leak was
accused
no.
2 who was
responsible,
with
Mavimbela
(an ANC
official with whom second appellant dealt in Lesotho), for organising
the the mission and who was thereafter responsible for
seeing to the
storage of its armoury and explosives and for find-ing the terrorists
accomodation. The matter of safe accomodation
was of particular
importance. Obviously he had to make every endeavour to find
households among the members of which there was the
least possibility
of loose talk and any secu-rity risk. He must necessarily have been
as much on the watch for that sort of danger
materialising,
/9
9.
as were
the terrorists themselves In
all these
circumstances the inference is over-whelming that the terrorists and
accused no. 2 foresaw that a threatening informer would
pro-bably, or
at least might possibly, be dealt with drastically before he could
contact the police. Drastic action in this situation,
we consider,
involved the foreseen possibility of the person concerned being
killed."
It will be
noticed that the death of a "threatening in-
former"
was thus found to be a foreseen possibility even
before Mrs
Tshiwula had threatened to expose her husband
and before
Joe had warned her of the possible consequence
of her
threat. In regard to the threat and Joe's warning
the
learned judge said:
"That
foreseen possibility was confirmed
by Joe's warning on 10 April
which was heard
by accused no. 1, The compelling
iníerence,
undisturbed by evidence from accused no.2,
is
that he also knew of that warning To
/10
10.
sum up, we
find beyond reasonable doubt that accused no. 1 must, on all the
evidence and at all materlal times from 10 April onwards,
have
foreseen the killing of the deceased possibly occurring in the
prosecution of the common pur-pose. In other words, he must have
foreseen the possibility that it might become necessary for Joe to
kill her in order to preserve the security and success of the
mission
on which they were engaged. With that foresight, and reckless as to
whether such death occurred, he continued to associate
in the conrmon
purpose right up to the time of his arrest 8 hours be-
fore the
murder On the same line of
reasoning
indicated in respect of accused no.l, we find that beyond reasonabie
doubt the cir-cumstances were such that accused no.
2 must have
foreseen the possibility that the deceased might implement her threat
to make her report to the police, and he must have
contemplated that
in such event fatality might well result, if not would result. Aware
of these conside-rations, he continued in
the furtherance of the
corrmon purpose, and was still so associating in it at the time of
the murder."
/11
11.
As will
presently appear the finding that the appellants foresaw the
possibility of the murder is crucial. Yet their counsel did not
seriously challenge it; and it is plainly correct. When the
terrorists came to South Africa and when second appellant became
associated
with them they must, as the trial judge has shown, all
have foreseen the possibility that people who threatened the secrecy
of their
missíon and the proper performance of their task
might have to be killed. That possibility became a very real one when
Mrs
Tshiwula ut-tered the threat. Of thís both the appellants
were aware. They were, moreover, aware of Joe's warning and, when
mat-ters came to a head s.ix days later when Tshiwula finally left
his wife, they must have appreciated the increased
/12
12.
risk of
her going to the poíice and the need for preven-ting her from
doing so. News of her death could hardly have come as
a surprise to
either of them. Their coun-sel suggested that they might have been
under the impres-sion that Joe's threat might be
sufficient to
dissuade Mrs Tshiwula from doing what she had threatened to do and
that it might accordingly not become necessary to
silence her
forcibly. But apart from there being no evidence of such an
impression, first appellant was the leader of the group and
second
appellant "the key local figure"; Joe's attitude was that
she shouid be killed and, had the appellants thought differently,
it
is hardly likely that his view would haye been allowed to prevail.
The
finding that the murder was committed in the
/13
13.
execution of the connmon purpose was not challenged either.
Appellants' counsel suggested at one stage of his argu-ment that ]oe
might have killed the deceased for his own undisclosed reasons, but
rightly conceded that such a sug-gestion is not supported by
the
evidence and is entirely unrealistic. The evidence overwhelmingly
points to her being killed in order to silence her and thus
to remove
the threat that she posed to the group and to the continu-ation of
its activities.
What
appellants' counsel did challenge - in a way that will presently be
seen - was the finding that his clients associated themselves
with
and persisted in the furtherance of the common purpose. This finding
must be viewed in the light of the following facts which
are
/14
14. not in
issue.
First
appellant
was
responsible,
first
with
3ames and
later
with
Joe,
for
planting
the
bombs
that
exploded
in New
Brighton
and at Swartkops and thus ac-
tively
participated
in
the
execution
of
the
common
purpose.
He was
the one who informed Joe
of Mrs
Tshiwula's
threat
By
doing
so he set
the
train
of
events
in
motion
that
eventually
led
to
her
death.
It
will
be
recalled,
more-
over, that he became
the
leader
of the
group in about No-vember 1982 and when he was on
his
way to
Lesotho
on 8 May
1983
his
purpose
was to
receive
further
instructions
in
regard
to
the
group's
activities.
Before
leaving
he
had told one of
the
State
witnesses
that
he would be
back
after
a few
months
with
"many
others".
To
what has
/15
15.
been said
earlier about second appellant's role may be added that he visited
Maseru during May 1932 after James and Walk Tall had
been in the area
for some time and ur-ged the A N C officials to step up the campaign
in Port Elizabeth. It was after this visit
that he started re-ceiving
regular consignments of arms and explosives and It was no doubt as a
result of his urging that the number
of terrorists was increased. The
trial judge described him as the "key local figure in the
setting up and fur-therance of the
terrorism campaign in Port
Elizabeth and in the receipt, storage and concealment of ammunition
and explosives". Second appellant
constructed a table with a
hidden compartment in which explosives
/16
16.
were kept. At
the
time of Mrs
Tshiwula's
threat
the table
was in the house where
first
appellant
stayed
and where the
threat
was
uttered.
I
mentioned
earlier
that
first
appellant
overheard the threat and that he repor-ted
it
to Joe when
the
latter
arrived
at
the
house
short-
ly
afterwards.
I
also
referred
to
Joe's
counter-threat.
Having
warned Mrs
Tshuwila
in
the
way
described
earlier
Joe left
the house with first appellant. The trial
court
found that they must have gone to inform second appellant for no
sooner had they left than second appel-lant arrived and had
the table
with the explosives re-moved to another house.
In view of
this clear evidence of the appellants' continuing participation in
the execution of the comrr,on
/17
17.
design
despite
the
í
r
foresight
of
the
possibility
of
the
murder
they would appear to
fall
squarely
under paragraph
(c)
of
the
well-known
dictum in S
v
Madlala
1969(2) S A
637 (A) at 640H to
the
effect
that
the
parties
to a com-
mon purpose are
liable
for
every
foreseen offence commit-ted
by any of them
in
the
execution
of
the
design
if
they
persist,
reckless
as
to
its
possible
occurrence.
Appel-lants'
counsel
argued, however,
that
this
principle
does
not
apply
in a case
like
the
present one.
His
argument
went
as
follows:
The A
N C is an
organisation
with
thou-sands
of members in
this
country and several others. Some
of
its
members
are
known
to have committed a
multitude
of
crimes in
the
execution
and
furtherance
of
its
objec-
tives.
It is
foreseeable
that they may
also
do so in
/18
18.
future. But, since liability cannot conceivably be im-puted to every
member for every foreseen crime so com-mitted by all other
members,
the imputed liability of a member is limited to crimes with which he
specifical-lý associates himself. This is so
because liability
on the basis of the doctrine of corrmon purpose arises from the
accused's association with a particular crime and
is not imputed to
him where he associates himself, not with a particular crime, but
with a criminal cam-paign involving the commission
of a series of
crimes. In such a case he can be convicted, apart from crimes in
which he personally participated, only of those with
which he
specifically associated himself. And in the present case, although
the appellants were actively
/19
19.
involved in the campaign, there is no evidence that they associated
themselves with Mrs Tshiwuia's murder.
I
am
unable
to agree. The argument
is
shrouded
in a
veil
of
irrelevant
matter.
We
are
not concerned in
the
present
case
with
the
general
question
of
the
liability
of members of
the
A N C
for
crimes
corrmitted by
other
members nor
with
the
appel-lants'
l
iability
merely
as members of
the
organisation.
The
introduction
of
these
questions
into
the
enquiry
only
serves
to
cloud
the
issue
and to
obscure
the fact that
what we
are
really
dealing
with
concerns
the
actions
of
three
individuals
- Joe
and
the
two
appel-lants - who formed
the
active
core
of
the
A N C ce
í
l
in
Port
Elizabeth
after
Walk
tail
had
left
and
James had
/20
20.
been
killed. It can be inferred from all the available evidence (eg of
their conduct when Mrs Tshiwula uttered the threat) that the
three of
them functioned as a cohe-sive unit in which each performed his own
allotted task. Their design was to wage a localised
campaign of
terror and destruction; and it was in the furtherance of this design
and for the preservation of the unit and the pro-tection
of each of
its membérs that the murder was ccm-mitted. This being the
narrow ambit within which their liability falls to be
decided it is
clear that they can-not derive material assistence from McKenzie
v_Van_der Merwe
1917 A D 41
in which the plaintiff unsuccessfully
sought to hold the defendant (who had joined a rebel corrmando during
the 1914 rebellion) liable
in damages
/21
21 .
by virtue
of the doctrine of common purpose for delicts
committed
by other rebels. All the members of the court
were
agreed in that case that the claim could only suc-
ceed if it
had been shown that the defendant had autho-
rized the
acts in question and the majority took the view
that this
had not been done. As INNES CJ pointed out
at 47 -
" where
it is
sought
to
affix
liability
on an
accused
for a
delict,
wh
í
ch
he
neither
instiga
ted,
perpetrated,
aided nor abetted, it must be shown that he aúthorised it, so
as to make the act com-plained of his act. And that
must depend upon
the circumstances of each case; do they or do they not justify the
inference that the perpe-trator was the agent
of the accused to do
the particular act? "
There is
no resemblance between the facts in
McKenzie's
/22
22.
case and the facts of the present
case, Remarks such as those of INNES CJ (at 45) that a rebel's mere
act of joining a commando could
not confer upon his fellow
in-surgents a mandate "to seize horses and stock or to de-stroy
property in furtherance of his operations"
and (at 47) that
"every member of a commando is (not), by the mere fact of his
membership, liable for the acts of every other
member'within the
scope of the objects of the rebellion ' " do not assist the
appel-lants.
Be that as it may,the nub of the
argument is that the appellants' participation in the execution of
the common design is insufficient
and that evidence of their
association with the murder as such is required to
/23
23.
render
them
liable.
This
submission
entails
a
dis-avowal of
the
principles
stated
in Madlala's case
(supra) at 640 G-H. It i
s
trite
that
the
parties
to a corrmon
purpose
to corrmit murder may be convic-ted of
that
offence
once it
is corrmitted by one of
them .
This
is what
paragraph(b)
of the relevant passage
says. But
there
is
also
paragraph
(c) to
which
I
referred
earlier
and
with
which
the
submission
can-
not be
reconciled.
Appellants'
counsel
sought to
overcome
this
difficulty
by
submitting
that
the
re-ference
in paragraph (c) to "some other
crime"
was
intended
as a
reference to a
particular
crime
and not a
series
of crimes.
This
is
plainly
not so.
/24
24.
In a case
like
the
present
one
there
is no
logical
distinction
between a common design
relating
to a
particular
offence
and one
relating
to a
series
of
offences
and
I
can conceive of
no reason
for
draw-
ing
such
a
distinction.
( Cf S
v Motaung and
Another
1961(2) S A 209 (A) at 210H - 211A ; S
v
Nhiri 1976(2) S A 789 (R A D ) at 790E-
791H.
) In my judgment
the
appellants'
liabili-y
ty in
terms of
paragraph
(c) of Madlala's case has
been
established.
I
say
this,
however,
subject
to
what
follows.
In an alternative argument
appellants' counsel challenged first appellant's conviction on
/25
25.
the ground that he had
aiready
dissociated
himseif
from the
corrmon purpose by
the
time that the murder
was corrmitted.
First
appeilant,
it
will
be
recal-
ied, left
Port
Elizabeth
for
Lesotho on
the
very
day of the murder
but
was
detained
at
Aliwal
North
in
connection
with
his
identity
document. (As
will
pre-
sently
appear he was not
formally
arrested
at
Aliwal
North
but
for
convenience
I
shall
refer
to
his
"de-
tention"
there.) Mrs Tshiwulawas murdered about ten hours
after
his
detention.
The court a guo
considered
the
question
of
h
í
s
possible
withdrawal
from
the common
purpose
in
the
context
of
/26
26.
his
departure for Lesotho. His departure as such, it was found, cannot be
regarded as an act of dissoci-ation since he had every intention
of
returning to con-tinue the campaign. His counsel submitted, however,
that his dissociation came after his detention when he confessed
to
being a trained terrorist and his involve-ment in some of the
explosions in Port Elizabeth. The court a quo's view of this part
of
his conduct will be mentioned after the evidence has been reviewed.
During the
morning of 8 May 1983 Lieutenant De Lange and Warrant Officer
Bezuidenhout of the security branch at Aliwal North were
on patrol
when they encoun-tered a Mikrobus on the outskirts of the town.
Having
/27
27.
ordered
the driver to stop De Lange requested the pas-
sengers to
produce their identity documents. First ap-pellant was one of the
passengers. The document that he produced had been issued
to Ndima
Saliwa and appeared to De Lange to have been tampered with since the
offic-ial stamp of the issuing authority did not cover
the
photograph. He decided to take first appellant to his office pending
further investigation. On the way he informed first appellant
of his
suspicion about the document and asked him for his corrment. First
appel-lant's reply was that he wanted to tell De Lange
the truth
about his military training and the explosions at New Brighton and
the Swartkops railway track. De Lange did not think
at first that
first appellant was
28.
serious.
In
his
office
he
asked
him
to
elaborate
on
his
al-
legations
where
u
pon
first
appellant
told
him
that
his
friend
James had
died
in
the
explosion
in New
Brighton;
that he
(first
appellant)
had
lost
the
magazine
of a
She-Peterson (a sub-machine gun) at
Swartkops;
that
the
document he had produced was
false
and that
his
real
name was Rufus Nzo. Upon
being
asked
about
his
knowledge of
explosive
devices he asked for a pen and paper and proceeded to
sketch,first,
what he
said
was the
device
he
had
used
in New
Brighton
and
which had
killed
his
friend,
and then another
device
which
he
said
was
the
one he
had
used
on
the
Swartkops rail-way track. On
the
second sketch
h
e wrote
the
letters
BPand
explained
that
the
next
target
was
to be
the
B P
fuel
depot
in
Port
Elizabeth.
Still
not
entirely
convinced,
De
/29
29.
Lange
handed him an album containing the photographs of
a large
number of fugitives from South Africa known to
the police
and asked him if he knew any of them. First
appellant
listed 31 of them as persons whom he recognised.
This
convinced De Lange that the appellant could well
be a
terrorist. He telephoned the security branch in
Port
Elizabeth and the result was that first appellant
was
fetched from Aliwal North that same evening and taken
to
Jeffreys Bay where he was detained. (It should per-
haps be
mentioned that Mrs Tshiwuia was killed at about
9 o'clock
that eveníng while the officers who had pro-
ceeded to
Aliwal North to fetch first appellant were on
their
way.)
Certain
events that occurred in Port Elizabeth
/30
30.
the
next
day may
also
conveniently
be
mentioned
at
this
stage.
These events were related to the trial court by Major Du Plessis, the
investigating officer, who took charge of first appellant
upon the
íatter's arrival in Port Elizabeth at about 4 o'clock in the
morning. In the course of the day first appellant informed
Du
Ples-sis of the identity of his confederates in Port Elizabeth
including second appellant to whom, he said, he had given arms
and
explosives to conceal. He also told Du Plessis about the means of
communication between terrorists in South Africa and A N C
officials
in Lesotho and showed him a tube of toothpaste in the bag that had
been taken from him at Aliwal North. Three coded messages
were
dis-covered in the tube. Later that afternoon he pointed
/31
31.
out
second
appellant
as he was
leaving
the
place
where he was employed. Second
appellant
was
detained.
At
first
he
denied
that
he knew
first
appellant
or
anything
about
concealed
weapons. At Du
Plessis's
request
first
appellant
then
spoke to
him
and he
told
second
appellant
to
surrender
"die
vuurwapens, of
the
AK's en
plofstof
wat
hy
vir
hom gegee
het
om
te
versteek".
This
apparently
caused second
appellant
to change
his
tune
for
he
started
to
co-operate
with
the
police
and
as
a
result
the
table with the
hidden
compartment and
the
explosives
contained
therein
were
discovered.
According
to De Lange, Bezuidenhout and Du Ples-sis first appellant acted
entirely voluntarily throughout. In cross-examination it
was put to
them that this was not
/32
32.
so and
that first appellant had been severely assaulted.
But,
although a trial-within-a-trial was conducted to enquire into this
allegation (and similar allegations by other accused against
other
police offícers, in the course of which most of the accused
testified under oath), first appellant was not called to
do likewise.
The re-sult was that the police evidence stood uncontradicted and was
accepted. It must accordingly be accepted that
first appellant
voluntarily revealed to De Lange and Be-zuidenhout before the murder
that he was a trained ter-rorist who had taken
part in two explosions
ín Port Eli-zabeth and that a fuel depot in the city would be
the next target. We must also accept
that this information was
compietely unsolicited and that he did his utmost to
/33
33.
convince De Lange and Bezuidenhout of its truth when
they
tended at first to disbelieve him.
I
am
unable
to
support
the
court
a guo's
finding
that first
appellant's conduct at Aliwal North did not
constitute
a dissociation on his part from the common
purpose.
The trial judge said in the judgment that
first
appellant -
" did
nothing from his side, apart from
his
confession at Aliwal North as to his own
role in
certain aspects of the mission, to evi-dence at any time relevant to
the murder dissoci-ation of himself from the common purpose
such as
the obvious expedient of informing the police of Joe's presence in
Port Elizabeth or of the danger hanging over the deceased.
When he
did mention the names of the people associated with him in Port
Elizabeth that was the following day."
That his
confession related only to his own role in the
/34
34.
campaign
is not entirely correct for what the iearned judge omitted to say is
that first appellant told the poiice about the next
target. He must
have realized that this information wouid effectively put the tar-get
beyond the terrorists' reach or would at least
impede an attack
thereon. One does not expect this kind of information to be revealed
by someone who still wanted to be associated
with the execution of
the corrmon purpose.
But this
is not my major concern about the find-ing. What weighs with me more
is the manner in which the revelations came to be made
and the
obviously fore-seeable consequences thereof. This is not a case of a
/35
35.
suspect
who confesses his guilt reaiizing that the game
is up and
that he might as well confess. First appel-
lant's
game was by no means up. To his knowledge the
police
suspected no more than that his identity document
had not
been properly issued. Had he wished to do so
he could
have explained the apparent irregularity untruth-
fully; or
he could have admitted it without revealing
anything
about
his
past
activities
which
were of
such
a
nature
tha.t he had
every
reason
to
suppress
them
parti-
cularly
if he
still
desired
to
persist
therein.
What
I
find so
remarkable is that this trained terrorist who
had been
ínvolved in serious acts of sabotage sudden-
ly turned
traítor and almost anxiously told the police
about his
deeds when he had no reason to do so. He must
/36
36.
have
realized that by doing so he was destroying every possible chance he
still had of continuing his mission since the police would
certainly
not let him go after getting to know who and what he was and what he
had done. And even if they would be foolish enough
to release him,
his anonymity was destroyed; he could be of no further use and would,
on the contrary, rather be a liability tq his
confederates remaining
in Port Elizabeth. Unless, therefore, he wanted no further part in
the mission why did he behave in this manner?
His
conduct the following day - particularly his insistence that second
appellant should surrender the weapons and explosives he had
been
given - reveals what his attitude was. This was a plain act of
abjuration
/37
37.
and,
although it could at that stage no longer assist
him,
it is
relevant
to
his
state
of mind at
the
time of his
disclosures
to De Lange. The
trial
court
held it
against
him
that he was not more
informative
when he spoke to De Lange. But de Lange made it
quite
clear
that he did
not
interrogate
first
appellant
properly;
what he
sought
was
some
form
of
confirmation
of
the
latter's
al-
legation
that he had been
trained
as a
terrorist
and
when
he
received
this
he telephoned the sec
ú
rity
branch in Port Elizabeth
beth and washed
his
hands of the
matter.
De
Lange's
evidence
is
that
he sat
around
with
first
appellant
for
hours
waiting
for
his
colleagues
from
Port
Elizabeth
to
arrive
and
that
during
all
those
hours
he
did
not
question
first
appellant
further. When Major Du
Plessis
interviewed him the
/38
38.
next day
he was brirrming with information which he was
only too
willing to reveal.
I
am
accordingly
of
the
view
that
first
appel-lant
dissociated
himself
from
the corrmon
purpose
before
the murder
was corrmitted and
thus
absolved
himself
from
liability
therefor.
A
final
point
should
be
mentioned
in
this
connection.
First
appellant's
dissociation
did
not form part of
his
defence
at
the
trial.
On the
con-
trary,
as
I
mentioned
earlier,
it was
suggested
to De lange
and
Bezuidenhout
that
first
appellant
did
not speak
to them of
his
own
free
will.
It does not appear from the
record
,
nor
could
counsel
who
appeared in this court
inform
us
with
certainty,
whether
the
point
was
raised
in
argument or whether
the
trial
judge
dealt
with
it suo moto
/39
39.
in
the judgment. But it seems to me to be immaterial whether it was
raised
by
the
defence
or not.
Bearing
in
mind
that,
in a case
where
liability
is
sought
to be
imputed to the accused as an
alleged
party
to a common
purpose,
it is
necessary
for
the
State
to
prove
his
as-
sociation
with
the
common
purpose
at
the
time of
the commission of
the
offence
(of S
v
Motaung
and
Another
( supra )
at 211 A ), he should, in my view, be ac-quitted if it appears from
the evidence that he dissoci-ated himself before íts
commission. First appellant should thus have been acquitted.
There
remains the question of second appellant's sentence for the murder.
The trial court found that there were extenuating circumstances
and
sentenced him to fifteen
/40
40. years'
imprisonment of which ten years were ordered to
be served
concurrently with the sentence of twenty years'
imprisonment
imposed on him on count I for treason. The
only
submission on his behalf was that the sentence is
disturbingly
excessive.
I
do
not
agree. The
sentence
is
a heavy one
but
I
do
not
regard
it as
sufficiently
in-
appropriate
to entitle this court to interfere.
The result
is that first appellant's appeal is
upheld.
His conviction and sentence on count 7.
are set
aside. Second appellant's appeal is
dismissed.
NESTADT JA
)CONCURS.
SAAKNOMMER: 501/86
IN DIE HOOGGEREGSHOF VAN
SUID-AFRIKA
(APP
è
L
AFDELING)
In die saak van:
REFUS NATO NZO
Appellant
no 1
DOUGLAS MNYISILE
TYUTYU
Appellant no 2
en
DIE STAAT
Respondent
CORAM: HEFER, NESTADT et
STEYN, ARR
AANGEHOOR
: 23 NOVEMBER
1989
GELEWER
: 8 MAART 1990
UITSPRAAK STEYN, AR.
2
Ek
het die uitspraak van my kollega Hefer gelees. Ek gaan akkoord met sy
uiteensetting van die basiese feite. Ek stem ook met hom
saam dat die
app
è
l
van
eerste appellant moet slaag, maar vir ander redes as
di
é
deur hom genoem. Ek verskil egter met eerbied van
hom
dat die app
è
l van tweede appellant
van die hand gewys
moet word. Na my oordeel
behoort beide app
è
lle te slaag
omdat
dit nie bewys is dat daar 'n gemeenskaplike doel
tussen
appellante en Joe was om die porledene te vermoor
nie.
Die bestaan van die bre
ë
algemene, of oorkoepelende
gemeenskaplike
doel om sabotasie in die Port Elizabeth gebied te pleeg is, na my
oordeel, nie genoegsaam om appellante sonder meer
regtens
aanspreeklik te hou vir die moord op die oorledene nie. Die feit dat
hulle en
Joe aan dieselfde terreur-sel
behoort het verander na my
mening ook nie
die posisie nie. Appellante het nie met
Joe
ooreengekom om die oorledene te vermoor nie en het
niks
gedoen om hom met die pleging van die moord te help
3
nie. Dít blyk duidelik uit
die volgende passasies in die
uitspraak van die hof a quo op die
meriete wat nie voor
hierdie Hof betwis was nie:
"It is not alleged that
murder was one of the acts which the accused conspired to commit.
There is no evidence in this case
that any accused was present at the commission of the crime or did
anything specifically connected
with the act of killing. ...
Turning to the facts, there is no
evidence here of a common purpose to kill or attack and injure,
whether aimed at the deceased or
any one else."
Appellante was ook onbewus daarvan
dat die moord gepleeg
is. Hulle is skuldig bevind slegs
op grond van die
volgende, t.w.: die bestaan van
die voormelde breë
algemene, oorkoepelende,
gemeenskaplike doel waaraan
hulle en Joe deelgenote was, dat
die moord gepleeg is ter
uitvoering van daardie doel, dat
hulle en Joe lede was
van dieselfde, redelik kleine,
terreur-sel en dat die
moontlikheid van die moord vir
hulle voorsienbaar was.
Daardie algemene doel kan egter op
baie verskillende
4
maniere en deur 'n groot getal
verskillende deelgenote ter uitvoering gebring word. 'n Besondere
deelgenoot kan gevolglik, beide wat
tyd en plek betref, vêr
verwyderd wees van die uitvoerende daad van 'n ander deelgenoot. So
'n deelgenoot mag boonop onbewus
wees van die pleging van die
besondere daad. Dik sou gevolglik regtens onhoudbaar wees om, slegs
op grond van so 'n algemene gemeensaplike
doel, iemand wat, sê,
in die noorde van Transvaal doenig is met die uitvoering daarvan,
aanspreeklik te hou vir 'n deelgenoot
se uitvoerende daad in Kaapstad
waarby hy nie betrokke was nie. Dieselfde oorweging geld egter ook
vir die geval waar die werklike
dader en 'n ander deelgenoot aah die
oorkoepelende doel lede van dieselfde groep is. Hierdie oorweging is
reeds deur hierdie Hof
ingesien in
McKENZIE v VAN DER MERWE
1917 AD 41
, wat gegaan het oor 'n eis om skadevergoeding vir skade
aan die eiser berokken deur rebelle in die Vrystaatse Riemland
gedurende
die rebellie van 1914. Die verweerder was deur die eiser
5
aangespreek
vir skade deur sy mede-rebelle berokken in
die gebied waarin hy ook opgetree
het. Dit was egter nie -
bewys dat die verweerder by die
skadeveroorsakende
optrede betrokke was nie. Die
eiser het nie in die
Vrystaatse
Hooggeregshof geslaag nie en sy app
è
l
is deur
hierdie Hof afgewys. (Dit is,
sovêr my kennis strek, die
eerste saak waarin die leerstuk
van gemeenskaplike doel
pertinent in ons regspraak
ingevoer is:
LAWSA
Vol 6 par
117 p 113; et vid. die artikel
deur M A Rabie in 1971
Vol
88 SALJ 227
op 230. Ek handel
later met die vroeëre
saak van
STEENKAMP v KYD
(1898) 15 SC 221.)
In sy
uitspraak het Hoofregter Innes
o.m. die volgende gesê op
pp 47-48:
"...
I
am not prepared to hold that every member
of a commando is, by the mere fact of such membership, liable for the
acts of every other
member 'within the scope of the objects of the
rebellion'. The term 'commando' is an elastic one, and the members
which compose it
may sometimes be engaged in wholly distinct and
different operations.
I
do
not propose to lay down any general rule. As already remarked.
6
where it is sought to affix
liability on an accused for a delict, which he neither instigated,
perpetrated, aided nor abetted, it
must be shown that he authorised
it, so as to make the act complained of his act. And that must depend
upon the circumstances of
each case; do they or do they not justify
the inference that the perpetrator was the agent of the accused to do
the particular act?
And where there is no evidence of express
authority the presence of accused at the time and his co-operation
then in a common purpose
would, of course, become an element of great
importance."
Die geleerde Hoofregter het
klaarblyklik nie die
verweerder se deelname in die
blote uitvoering van die
oorkoepelende gemeenskaplike doel
van die rebellie beskou
as magtiging deur hom vir die
daders se skadelike optrede
nie. In die onderhawige geval was
daar ook getuienis
dat verskillende lede van die
betrokke sel op
verskillende tye betrokke was by
verskillende en
afsonderlike uitvoeringsdade.
Eerste appellant se rit na
Lesotho via Aliwal Noord is 'n
goeie voorbeeld daarvan.
In sy uitspraak in die
McKENZIE
saak, supra, het Solomon
AR. in hierdie opsig tot dieselfde
gevolgtrekking gekom;
7
op
p 52 het hy dit s
ò
gestel:
"Thus in
COMBRINCK v
WOLFAARDT
(9 H.C.G. 138) and
JACKSON v FREEDMAN
(8 H.C.G.
332) there is no suggestion in the judgments in favour of any such
rule as is now contended for. And certainly if we were
to adopt it,
it would be productive of very startling results, for as pointed out
by the Chief Justice of the Orange Free State in
his judgment 'it
would make a rebel in this Province liable for the acts of another
rebel in the district of Prieska in the Cape
Province with whom he
had no futher connection than that both of them were ultimately under
the head command of General De Wet.'Moreover
it would mean that every
private in the rebel ranks would be civilly liable for everything
done by the orders of the commander-in-chief
in furtherance of the
rebellion. No
direct
authority in o
ur
l
aw
has
been
produced
for a doctrine
which produces such startling results, and it was virtually admitted
that it could only be based on the ground of agency.
That no such
agency is expressly constituted by a rebel when he enters into
rebellion is undoubted, and
I
fail
to see how it can be inferred from the mere fact of his joining such
a movement."
Die
McKENZIE
saak het
weliswaar oor deliktuele
aanspreeklikheid
gegaan, maar in 'n
strafsaak geld
voormelde benadering met selfs
groter krag. In die
8
vierde uitgáwe (1985) van
De Wet en Swanepoel se
STRAFREG
word die volgende opsommenderwys
daaroor gesê op 197:
"In
McKENZIE v VAN DER
MERWE
1917 AD 41
het Hoofregter Innes al beklemtoon dat die
bestaan van 'n mandaat nie sommer geredelik uit 'n vae en algemene
gemeenskaplike doel
afgelei moet word nie, en hierdie waarskuwing,
gemaak in 'n
siviele saak, geld met soveel meer
klem in 'n kriminele saak."
Die leerstuk van gemeenskaplike
doel het saak vir saak in
die Engelse reg gestalte gekry
t.a.v. besondere misdade
waarby twee of meer persone
betrokke was. In die
McKENZIE
saak, supra, het
Hoofregter Innes daardie
ontwikkeling in bondige terme so
geskets op p 46:
"Reliance was placed upon the
well-known rule of English criminal law to the effect that those who
take part in the execution
of a common criminal purpose are
individually liable in respect of every crime committed by any one of
them in the execution of that
purpose, and not foreign to it (see
Stephen's
DIG. CRIM. LAW
par 39) . Now that rule has not been
deduced from general principles, but rests upon certain old decisions
...
... a reference to the old English
decisions shows that they were cases in which the persons convicted
were present, in pursuance
of the
9
common purpose, at the commission
of the crime charged."
Kyk ook na
RABIE
, op. c.t.
1971
SALJ
227-229
, waar, op
229 ook die volgende gesê
is:
"From England the common
purpose principle was introduced to South Africa via the Native
Territories' Penal Code (Act 24 of 1886
(C)). Section 78 of this Act
provides:
'If several persons form a common
intention to prosecute any unlawful purpose, and to assist each other
therein, each of them is a
party to every offence committed by any
one of them in the prosecution of such common purpose, the commission
of which offence was,
or ought to have
been,kn
own
to
be a p
robable
consequence of the prosecution of
such common purpose.'"
Die bogemelde "ou Engelse
sake" het almal pertinent
betrekking gehad op twee of meer
persone wat saamgespan
het om 'n besondere misdaad soos
moord, roof, ens., te
pleeg en het nie gegaan oor die
geval waar 'n persoon op
sy eie 'n besondere misdaad
gepleeg het ter uitvoering van
'n breë, algemene
gemeenskaplike doel waarby andere ook
10
betrek was,maar wat nie betrokke
was by die pleging van
die besohdere misdaad nie. Daar is
geen aanduidings dat
die bedoeling by, of effek van die
voormelde kode van
1886 was om die leerstuk na so 'n
breër grondslag uit te
brei nie.
STEENKAMP v KYD
.
supra, het gegaan oor 'n eis
om skadevergoeding weens skade
berokken aan die eiser
tydens 'n aanval op hom deur die
verweerders in die loop
van 'n politiek-geïnspireerde
opstootjie in Griekwaland-
Oos gedurende die 1890's. Die
breë, algemene
gemeenskaplike doel van die
opstootjie, waaraan die
verweerders deelgenote was, was om
"oorlog te maak teen
die regering". In die
magistraatshof is uitspraak teen
die verweerders gegee, o.a. met
verwysing na art 78 van
voormelde kode.
In hul app
è
l na die Kaapse
Hooggeregshof
is namens die verweerders betoog
dat hulle nie vir die
skade aanspreeklik gehou kon word
nie omdat hulle nie
daadwerklik aan die aanval op die
eiser deelgeneem het
nie. Hul app
è
l
het nietemin misluk. Hoofregter de
11
Villiers het sy beslissing baseer
op die feit dat die
aanval geloods is op bevel van 'n
leier wat deur die
verweerders en andere verkies was,
maar hy het nie verwys
na die leerstuk van gemeenskaplike
doel nie. In sy
samestemmende uitspraak het
Buchanan R. egter soos volg
obiter daarna verwys, en die feite
bondig saamgevat, op
225:
"I
wholly
concur in the judgment of the Chief Justice. If it had been necessary
I
would even have
been prepared to dismiss the appeal on further grounds, for it has
been shown by the evidence that there was a common
purpose among
all
the
parties
present
to
attack
Kyd.The
party was formed into three
troops, one troop, presumably composed of the boldest of the lot, to
do the active work, the second party
to support the first, while the
third party was to be a reserve. There was thus a common purpose to
attack Kyd, which should render
them all, severally and individually,
liable for the consequences."
Hierdie was 'n heel vroeë
siening oor die
toepassingsgebied van die
leerstuk. Buchanan R. het geen
melding gemaak van die
onderliggende algemene doel van
12
die opstootjie ter uitvoering
waarvan die aanval op Kyd
gedoen was nie. Dit is myns
insiens duidelik dat hy die
leerstuk gesien het as toepasbaar
slegs op 'n besondere
misdadige optrede. Alhoewel sy
uitlating obiter was, was
dit nogtans in ooreenstemming met
die voormelde bepalings
van die Engelse reg van daardie
tyd. Dat die destydse
Engelse strafreg die leerstuk van
gemeenskaplike doel
beperk het tot die geval waar twee
of meer nie-daders by
die pleging van
'n
b
esondere misdaad betrokke was, blyk na
my mening ook heel duidelik uit
die volgende passasie in
par 528 van Vol 9 van die eerste
uitgawe van
HALSBURY,
THE LAWS OF ENGLAND
(1909):
"To constitute a principal in
the second degree mere presence at the crime is not enough; there
must be a common purpose, an
intent to aid or encourage the persons
who commit the crime and an actual aiding or encouraging."
Die toepassing van die leerstuk
van gemeenskaplike doel
is sedert die
McKENZIE
saak
sovêr ek kon vasstel, in ons
regspraak ook deurgaans beperk tot
die pleging van 'n
13
besondere misdaad, en tot die
geval waar 'n ander nie-beoogde maar voorsienbare misdaad gepleeg is
in die loop van die pleging of
gepoogde pleging van die beoogde
besondere misdaad. Die uitsprake van hierdie Hof in bv.
S v
MADLALA
1969 (2) SA 637
(A), (waarop my kollega Hefer pertinent
staat maak),
S v SEFATSA AND OTHERS
1988 (1) SA 868
(A)
(verkeerdelik in die SA Regsverslae rapporteer as
S v SAFATSA AND
OTHERS
), en
S v MGEDEZI AND OTHERS
1989 (1) SA 687
(A),
waarin die leerstuk weereens samevattend en verduidelikend
uiteengesit is, het almal gegaan oor besondere misdade wat deur
meerdere
persone gepleeg is, en die uiteensettings van die leerstuk
in daardie sake het pertinent toepassing gehad slegs op sulke
gevalle.
Die uitbreiding van die leerstuk na die voormelde breër
grondslag is nie daarin beoog of behandel nie. Paragraaf (c) van die
dictum in die
MADLALA
saak waarna my Kollega Hefer verwys, lui
bv. só (p 640 G-H):
"Generally, and leaving aside
the position of
14
an accessory after the fact, an
accused may be convicted of murder if the killing was unlawful and
there is proof - ...
(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) SA 692
(AD) at p 694 F-H and 695; ..."
(
MALINGA
se saak waarna
hier verwys word, het ook slegs
gegaan oor betrokkenheid by die
pleging van 'n besondere
misdaad.) In die verband waarin
hierdie dictum
geformuleer is het dit
klaarblyklik slegs die toepassing
van die leerstuk op die beperkte
grondslag van 'n
besondere misdaad beoog. Dit het
nie te doen gehad nie
met die aanspreeklikheid van
deelgenote aan 'n algemene
gemeenskaplike doel vir 'n
besondere misdaad gepleeg deur
h ander "algemene deelgenoot"
ter uitvoering van daardie
doel, maar by die pleging waarvan
hulle nie betrokke was
nie.
Die feit dat appellante en Joe
lede was van h
15
klein terreur-groep, is, soos
reeds gemeld, myns insiens, nie hier deurslaggewend nie. Die lede van
daardie groep het, soos ook reeds
gemeld, herhaaldelik afsonderlik
opgetree en besondere misdade apart gepleeg ter uitvoering van die
oorkoepelende doel. Die lede
van daardie groep moet gevolglik in
dieselfde lig gesien word, en op dieselfde wyse behandel word as die
kommando-lede in die
McKENZIE
saak, supra. Ek kan met eerbied
nie met my Kollega Hef er saamstem dat die
McKENZIE
-saak nie
op die onderhawige geval van toepassing is nie. Na my mening is dit
om die reedsgenoemde oorwegings inderdaad hier baie
pertinent van
toepassing. Daar, net soos hier, het dit gegaan oor die regswerking
van 'n breë, algemene gemeenskaplike doel
ter uitvoering waarvan
die gewraakte besondere daad gepleeg was. In die onderhawige geval
was volgehoue deelname aan die uitvoering
van so 'n doel, en nie die
grootte van die betrokke groep of sel nie, ongetwyfeld die grondslag
vir appellante se
16
skuldigbevinding aan die moord op
die oorledene. Sonder daardie volgehoue "algemene" deelname
sou daar geen grondslag vir
hul skuldigbevinding bestaan het nie. Die
waarskuwings aan die oorledene, die navrae oor wat sy gesê het
en die verwydering
van die tafel was iets heel anders as 'n besluit
om haar dood te maak. Dit was alles trouens daarmee vereenselwigbaar
dat sy bly
lewe. Die
McKENZIE
-saak is na my mening steeds 'n
heilsame vermaning teen pogings om die toepassing van die leerstuk
van gemeenskaplike doel uit te
brei na gevalle waarvoor dit nie
bedoel was nie. Ek kan ook nie met my Kollega Hefer saamstem dat
appellante se advokaat hierdie
aspek van sy betoog benewel het deur
dit met irrelevanthede te besluier nie. Na my mening was daardie deel
van sy argument pertinent
gerig op die kern van die hele
aangeleentheid. Ek meen sy betoog was regtens goed gegrond. Dit is
die beginsel waarop die leerstuk
gegrond is wat hier ter sprake is,
en die toevallige grootte van
17
'n besondere
groep ,deelgenote aan 'n bre
ë
gemeenskaplike doel is nie sonder meer ter sake nie.
Die leerstuk van gemeenskaplike
doel is, na my oordeel, in die geval van 'n nie-dader gegrond op die
beginsel van "nabyheid"
(feitelik en regtens) van so 'n
nie-dader aan die pleging van die betrokke misdaad. In die
onderhawige geval was die appellante regtens
en feitelik baie ver
verwyderd van die moord op die oorledene. Appellante se kennis van
die oorledene se dreigement en van Joe se
waarskuwing aan haar
daaromtrent, die navrae deur tweede appellant oor wat sy gesê
het en sy daaropvolgende verwydering van
die tafel met die geheime
laai, kom nie neer op magtiging deur hulle aan Joe om haar te vermoor
nie. Die blote voorsienbaarheid van
die feit dat sy moontlik deur Joe
of iemand anders vermoor kon word, sonder hul toedoen, en hul
deurlopende verbondenheid tot die
breë algemene gemeenskaplike
doel kom, na my mening, tesame met die
18
ander reeds genoemde feite, ook
nie sonder meer op sulke magtiging vir of deelname aan die moord neer
nie. En daar is niks meer nie.
Die voorsienbaarheid van 'n
moontlike moord op die oorledene waarby appellante nie betrokke sou
wees nie, en hul voortgesette verbondenheid
tot die voormelde
algemene gemeenskaplike doel en lidmaatskap van hul terreur-groep is
gevolglik, na my mening, nie hier ter sake
nie. Die leerstuk van
gemeenskaplike doel is volgens my oordeel nie reeds deur ons
regspraak verbreed om 'n geval soos die onderhawige
te dek nie, en
daar bestaan geen regverdiging om dit in hierdie geval te doen nie.
Onder voormelde omstandighede is die gaping tussen
appellante se
lidmaatskap van die gemelde groep en verbondenheid tot die breë
algemene gemeenskaplike doel aan die een kant,
en die moord op die
oorledene aan die ander kant, gevolglik te groot om deur die leerstuk
van gemeenskaplike doel oorbrug te word.
Daar was in die
19
onderhawige
geval verkeerdelik gepoog om daardie leerstuk toe
te pas op 'n feite-kompleks waarop dit nie toepasbaar is nie en
waarvoor dit nie
bedoel is nie. Die skuld van die appellante aan die
moord is derhalwe nie bewys nie.
Ek mag ten slotte net meld dat
alhoewel ek dit met Hefer AR. eens is dat eerste appellant hom reeds
op Aliwal Noord aan die gemelde
algemene gemeenskaplike doel onttrek
het, daardie onttrekking in die lig van die bogaande nie ter sake was
by die moord nie.
Na my mening
behoort die app
è
lle van albei
appellante gevolglik te slaag en behoort hul skuldigbevindings aan en
vonnisse op die moordklag ter syde gestel te word.
M T STEYN, AR.