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1992
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[1992] ZASCA 87
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S v Mohapi and Others (9/91) [1992] ZASCA 87 (27 May 1992)
CASE NO. 9/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the
matter between:
SIMON MOHAPI FIRST APPELLANT
JOB FALATSI SECOND APPELLANT
JOHN
MAGUBANE THIRD APPELLANT
ELIAS SEKALEDE FOURTH APPELLANT
and
THE STATE RESPONDENT
CORAM:
VAN HEERDEN, KUMLEBEN JJA et HOWIE AJA
DATE HEARD:
25 MAY, 1992
DATE DELIVERED:
27 MAY, 1991
1
HOWIE AJA:
Arising out of the killing of a shebeen owner, the theft of her
property and the robbery of two of her customers, the four appellants
were
convicted in the Transvaal Provincial Division (Weyers J and assessors) of
murder (count 1), theft (count 2) and robbery with
aggravating circumstances
(counts 3 and 4). They were acquitted on the fifth count, which was one of
robbery with aggravating circumstances
in respect of a third customer. Each
appellant was sentenced to an effective 13 years' imprisonment. With the leave
of the trial
judge this appeal is directed against their convictions.
The incidents in question occurred on a Friday evening in January 1987 at the
deceased's home in Sebokeng. The deceased was attacked
outside the house by a
number of people who then chased her inside and further attacked her in her
bedroom. She sustained various
knife wounds. One of them was a stab wound of the
chest, from which she died. It is not in dispute on appeal that her assailants
made common cause in attacking her, that they had the necessary intent to
2
kill in the form of dolus eventualis and that they ransacked her bedroom and
stole a quantity of her goods. It was also not contested
that two people who
were drinking in her sitting-room at the time, one Hlatswayo and one Mawela,
were robbed by a man who had very
shortly before been involved in the attack
upon the deceased.
First and fourth appellants were represented by Mrs
Ludewig. Fairly, she drew attention to certain inconsistencies and
contradictions
in the respective versions of the events given by the relevant
State witnesses but accepted in the result, rightly, in my view, that
these
features were insufficient to cast doubt upon her clients' convictions for
murder and theft, or the trial Court's finding that
the person who actually
robbed Hlatswayo and Mawela was second appellant. Counsel submitted, however,
that first and fourth appellants
had not made common cause with second appellant
in so far as the robbery was concerned and that the trial Court had therefore
erred
in convicting them on counts 3 and 4.
Second and third appellants were represented
by
3
Miss Syfert. The main thrust of the submissions contained in the heads of
argument drawn by her predecessor in the case was that the
shortcomings in the
State evidence to which I have referred were such that second and third
appellants had not properly been identified
as having been in the shebeen at the
relevant time or, alternatively, as having taken part in the commission of any
of the proved
crimes. Properly, Miss Syfert did not persist in the first line of
argument. However, she pursued the second.
The trial Court was fully aware of inconsistencies and contradictions in the
State evidence but concluded that they were understandable
in the circumstances
which prevailed and did not really detract from the credibility or reliability
of the pertinent prosecution
witnesses. The trial Court also found the evidence
of first and second appellants, that they had been present in the shebeen but
that the offences had been committed by other patrons, to be false beyond
reasonable doubt. Third and fourth appellants did not testify
and there were no
other defence witnesses.
In the light of counsel's arguments it is
4
unnecessary to consider the evidence given by first and second appellants. It
is also unnecessary, in my view, to discuss the prosecution
evidence in any
detail. In broad summary it was this. Hlatswayo, Mawela, Joyce Mphana and
another woman were together drinking in
the deceased's sitting-room. Two youths
were also present, sitting by themselves. Third and fourth appellants entered
and ordered
liquor, whereafter one of them went outside and returned accompanied
by first and second appellants. Appellants, who were all armed
with sharp
weapons, sat in a group. After a while Mawela took R80 out of his pocket and
started to count it. One of the youths warned
him not to do this so openly,
using an idiom to the effect that there were some hungry dogs present. First
appellant reacted angrily
and went up to the youth and hit him. This resulted in
a disturbance which woke the deceased who had been asleep in her adjoining
bedroom. She entered the sitting-room and, after speaking to the two people
responsible for the argument, ordered the youths to leave.
She returned to her
bedroom but not much later re-emerged . and went outside. Almost to a man, the
appellants got
5
up and went out after her. Several minutes later the deceased ran back inside
the house, having already been stabbed. She was pursued
by all the appellants.
She ran into her bedroom. So did first, third and fourth appellants. She was
further assaulted there and her
belongings plundered. In the interim, second
appellant came to Hlatswayo' s group. He stabbed Hlatswayo and Mawela and
ordered them
to sit on the floor in a corner with their eyes closed. He then
proceeded to take money from Hlatswayo and Mawela. Having done so,
he joined the
other appellants, some of whom had been involved in the meanwhile in taking
cigarettes and liquor from the stocks which
the deceased kept in her bedroom.
The appellants then departed.
The aforegoing summary is in essence the version given by Hlatswayo,
supported on all material aspects by Mawela.
Joyce gave evidence differing from Hlatswayo in some measure. The trial Court
considered her evidence sufficiently unreliable to justify
the appellants'
acquittal on the fifth count in which it was alleged that they had robbed her.
Nonetheless it is clear that
6
Joyce, who by all accounts did not comply with the second appellant's
instruction to sit on the floor, was in the vicinity of the
door leading out of
the sitting-room intent on escaping. This was at a point which was also close to
the deceased's bedroom door.
Whether Joyce was at some stage pushed into the
bedroom by the other appellants or not does not seem to matter. There is no
reason
to doubt her allegation that the other appellants declared that they were
after money and that they demanded money from her. Their
having done so is in
keeping with the evidence of Hlatswayo and Mawela.
Evidence contradicting the other State witnesses in various respects was
given by the deceased's daughter. There can be little doubt
that where she thus
differed she was clearly wrong.
Having reconsidered the evidence in the light of the arguments tendered on
the appellants' behalf I am satisfied that the discrepancies
drawn to our
attention in no way served to weaken the testimony of the main State witnesses
upon whose evidence the convictions rest.
7
On the question of common purpose in relation to the robbery, it is obvious
that the other appellants were linked to second appellant
by common purpose in
so far as the latter assisted them by taking steps to prevent the potential eye
witnesses from leaving or from
seeing what was going on in relation to the
deceased. His stabbing two of them was merely one of such steps. And in so far
as he
also took money from them, this was entirely in keeping with the actions
of all of them throughout the piece. They arrived together,
all armed. They all
followed the deceased outside. They were all involved in the attack on her
before she re-entered the house. While
second appellant took charge of the
people in the sitting-room, the other appellants carried out the major task of
eliminating the
deceased and looting her possessions. Where the others demanded
money from Joyce, second appellant took money from Hlatswayo and
Mawela. The
only reasonable inference is that it was the appellants' intention from the
start to take whatever money they could lay
their hands on and that they were
associated by common purpose in all the
8
offences that were committed.
The trial Court has not been shown to have
erred in the respects contended for by appellants' counsel and their appeals
cannot succeed.
It remains to deal with the trial Judge's
direction, when giving
leave to appeal, that the appeal
be heard by this Court. His judgment in
this
connection reads as follows:
"Die advokate namens die beskuldigdes bring nou 'n aansoek vir verlof om te
appelleer na die Appel-afdeling van die Hooggeregshof.
Die aansoek word
geopponeer deur mej. Adams namens die staat, maar alhoewel ek die mening
toegedaan is dat daar geen redelike moontlikheid
van sukses op appel is nie,
omdat die hof nie mej. Adams se submissie wat betref beskuldigdes 3 en 4 aanvaar
het nie, om daardie
rede word
verlof om te appelleer na die Appèlhof
toegestaan.
"
The relevance of the reference to third and
fourth appellants is that in argument on the issue of guilt, counsel for the
prosecution
had told the Court that she was not asking for a conviction against
them seeing that, in her submission, they had not been adequately
identified or
linked to any proved common purpose. For the reasons given in the trial Court's
judgment and this judgment, that attitude
on the part of State
9
counsel was entirely ill-considered. It therefore affords no warrant for the
trial Judge's granting leave when, as he himself saw
the situation, there were
no reasonable prospects of success. Having concluded that he would give leave,
there were more than adequate
grounds to satisfy him, had he considered the
issue of leave as he was required to do by the terms of s 315(2)(a) of the
Criminal
Procedure Act, that no question of law or fact, or any other
consideration, made it appropriate that this appeal be heard by the
Appellate
Division. It was plainly an instance in which, if leave was granted at all, the
appeal should have been directed for hearing
by the full Court. It is the
responsibility of counsel when applying for leave, and ultimately the
responsibility of the Judge considering
such application, to give proper
consideration to the matter of the appropriate forum. The appeals of all the
appellants are dismissed.
C T HOWIE AJA
VAN HEERDEN JA)
) CONCUR
KUMLEBEN JA )