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1992
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[1992] ZASCA 219
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S v Singo (506/91) [1992] ZASCA 219; 1993 (2) SA 765 (AD); [1993] 1 All SA 465 (A) (27 November 1992)
Case Nr 506/91
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
MASHITHE GODFREY SINGO
Appellant
and
THE STATE
Respondent
CORAM
: E M GROSSKOPF, NIENABER, JJA, et VAN COLLER AJA
HEARD
: 23 November 1992
DELIVERED
: 27 Nov 1995
JUDGMENT E M GROSSKOPF, AR
2
The appellant was convicted in the Supreme Court of Venda of murder by VAN
DER WALT J and assessors and sentenced to five years' imprisonment
of which two
years were conditionally suspended. With the leave of the trial judge he now
appeals only against his conviction. The
point on which leave was granted was a
limited, although important, one, and by agreement between the parties only that
part of the
record necessary for the determination of the issue on appeal was
filed. In effect the parties placed a stated case before us. The
parties are to
be highly commended for thus cutting down costs and generally facilitating the
determination of the matter.
The appellant was one of seven accused. However, before the commencement of
the trial, accused no. 5 absconded and the charge against
him was provisionally
withdrawn. The trial proceeded against the remaining six, although they retained
their original numbering.
The appellant was accused no. 4.
3
In view of the form which this appeal took it will
be convenient to quote
the judgment of the trial court
in
extenso
. The judgment sets
out the facts as follows:
"The events relevant to the case before us are to a large extent common cause
and the following history appears to us to be not in
dispute. The accused are
all young men. The deceased, the witnesses as well as other characters in the
drama are all inhabitants
of Murangonni residential area and appear to be known
to each other to a greater or lesser extent. Most of the accused were secondary
scholars at a local school. Some time before the fateful event, a female scholar
fell unconscious on the sports ground, and on the
25th of May she again had an
attack of some kind in the class room. What exactly her infirmity was, does not
appear from the evidence,
but it seems likely that she suffered epileptic fits.
After she was taken from school on the last mentioned day, she was taken to
the
local headman's kraal. She was taken there apparently by one or more of the
teachers and by her grandfather, one Ben. It is not
exactly clear when this
happened, but it is fairly clear and not disputed that she had at some stage
named three elderly women, one
of whom was the deceased, as being responsible
for her condition in the sense that they bewitched her. It was apparently as a
result
of these allegations by the girl that the matter was reported to the
headman. It also seems fairly clear that she was not regarded
as sane at that
stage when she was taken to the headman's kraal,
bound.
The headman then summoned a tribal meeting at
his
4
kraal by messenger and also sent a
posse
or
posses
of what were
called young men to fetch the three alleged culprits. One of them, one
Nyadzanga, was working in the fields and only
returned home at or after dusk.
Soon after her return she was fetched by a group of youngsters. Her two
daughters were also taken
along. ...
When the group arrived at the chief's kraal with her, there was a large
number of people, young and old, present. They were gathered
in a circle around
the fire and Nyadzanga was placed in the middle of the circle where she found
the deceased as well as another
old woman, one Masindi. It appears that certain
information had been conveyed to the chief by a teacher and the girl's
grandfather
Ben. On account of this, the headman instructed the three women to,
as it was stated, 'unbewitch the girl'. The three women's attitude
was one of
denial that they were responsible for her condition and the deceased suggested
that money be obtained, and a witchdoctor
or inyanga be consulted in order to
establish who was responsible for the girl's condition. This request was refused
because the
headman stated that the girl could speak for herself. The girl's
hands were then unbound and she accused the three old women of having
bewitched
her. She also gave some, not very clear, explanation of the manner in which she
was bewitched alleging that Nyadzanga was
calling her with a small horn to work
for her grandfather. There was also an allegation by somebody else, I think it
was by Ben the
girl's grandfather, that Nyadzanga had on a previous occasion
bewitched a son or a relative of his who was allegedly by then working
in Louis
Trichardt as a Zombie. Things then got out of hand with the girl attacking
5
Nyadzanga, hitting her, also striking her with a stone and attempting to
place a tyre of a vehicle which conveniently was on the scene,
over her body. It
is also clear that the gathered crowd then got excited, they stood up and there
was a lot of noise according to
the evidence. The headman then defused the
immediate situation by ordering the three alleged witches into his cooking hut
and by
chasing the crowd away, waving a kierie and with the aid of his dogs.
There is some evidence to which I will refer later, which seems
to indicate that
the headman in doing what he did, did not act with unselfish motives or
basically in the interest of the three old
women. The crowd then dispersed and
there is some evidence that at least some of them were not satisfied with the
course things took.
A large section of the crowd which appears to have consisted
mainly of young people, left the meeting place along a footpath which
initially
leads roughly west and then towards the south where it joins a major road.
They then proceeded towards the east along this road. At a stage they were
caught up by accused No. 7 who is the headman's son, travelling
on a motor
cycle. He then informed the crowd that the three women had been released.
According to the evidence he said: 'We have
released those women'. He further
told them that his father was afraid that if the women were killed at his kraal,
the police would
also have him arrested. Accused No. 7 proceeded to say that the
women had now been released and that they were somewhere towards
the front of
the mob. ...
Immediately after accused No. 7's report to the crowd they started running
along the road towards
6
the direction in which the three women were stated to be. Somewhere towards
the east of where they were, another footpath also leading
from the chief's
kraal joins the major road. The deceased came along this footpath and landed
herself amongst the charging crowd
which in their charge got separated into a
rear-end and advance guard.
The crowd then converged upon her and assaulted her
inter alia
by
using stones and other instruments such as sticks. After she was assaulted to
the extent that she remained lying on the ground,
the mob slowly started to
disperse moving further along the road towards the west, the direction in which
they were originally proceeding.
When the mob or at least some of them were 40
to 50 yards or meters away, the deceased got up and followed the mob. Members of
the
mob apparently on seeing her getting up, stopped and parted towards both
sides of the road. Indications are that the deceased was
then already seriously
injured and she most probably did not realise that she was proceeding right into
danger again. Evidence of
one of the state witnesses was that she then said 'she
will finish them all'. ... The crowd then set upon her again and she was killed.
According to photos that were taken of the body on the scene, it is clear that
she was stoned with stones of various sizes some of
them almost as big as her
torso. According to medical evidence her skull was fractured in various places
and at some places into
fragments, while her legs and lower body had various
burns. The cause of death is stated to be shock due to brain haemorrhage and
possible burns."
7
These were the facts which were common cause. The court then had to decide
what was the extent of the appellant's participation. Here
the court relied
largely on the appellant's own evidence. He testified that he was also at the
chief's kraal with the meeting and
in general he confirmed the account of the
events set out above. When the meeting broke up, he left with the group which
later attacked
the deceased. As they were walking along the road, accused no. 7
overtook the group and everybody stopped. The appellant estimated
the group to
have been in the vicinity of 70 people. The appellant confirmed that accused no.
7 then told them that the women had
been released; that the headman was afraid
that if they killed the women at his kraal the police might also arrest him, and
that
the women were up in front somewhere. When the people started running
towards where they understood the women to be the appellant
went with them. As
they ran along the road, the group broke up into two smaller groups, the faster
runners being up front, and
8
the slower runners at the rear. The appellant was in the front section of the
slower group. At a junction the deceased came into view
from a side road. She
was between the two groups. She turned to the rear group and the groups
converged upon her. The appellant said
that the mob then started assaulting her
by throwing stones at her and hitting her with sticks. He himself threw two
stones from
a distance of three to four metres. The stones were the size of his
fist. One of the stones struck the deceased. The appellant's
evidence then
continued:
"COURT: And the other?
A. I did not see whether the other stone struck the deceased or not because
when I was throwing it I felt a blow of a stick on my
shoulder by a person who
was behind me.
COURT: Was the stone intended to strike her or
not?
A. Yes
ADV. RENKE: And was she still on the ground when
you threw these two stones? A. Yes. ADV. RENKE: Now, after having thrown the
stones
what did you do? A. I left.
ADV. RENKE: Why did you leave?
A. I was worried
about the blow that landed on my shoulder and then had to leave.
9
ADV. RENKE: What do you mean by saying you were worried about the blow on your
shoulder, was it painful or what do you mean? A. It
was painful. COURT: How
thick was the stick which struck you,
or did you not see it? A. According to how I felt the blow my lord, the blow
started from my back and this stick bent over and also
hit me on my chest then
from that I think that it was a thick stick. ADV. RENKE: Did you then go and
sleep? A. Yes."
Although the court in
general accepted the
appellant's evidence, it was troubled by two aspects thereof.
The first
was a matter of credibility. The appellant
maintained throughout that he had
had no intention to kill
the deceased. This part of his evidence was rejected
on the
strength of his statement in terms of section 119 of the
Criminal
Procedure Act, his demeanour in court as well
as of the contents of his
evidence. Of particular importance
was the fact that the appellant, in
association with the rest
of the mob, attacked the deceased in response to
a
suggestion by accused no. 7 (only slightly veiled) that they
10
should kill her. And, indeed, the appellant had conceded in
the
magistrate's court in an explanation of his plea of not
guilty that "I was
sent by ... the son of the Khosi (i.e.,
the chief) to assault the deceased to
death". Finally the
court took into account the nature of the assault
perpetrated
on the old woman by a mob of approximately 70 people of
whom
approximately 30, according to the appellant, actively
participated
in the attack. In the light of all these
circumstances the court came to the conclusion:
"that only one inference can be drawn and that is the accused in fact had the
common intent to kill the deceased and that he acted
in association with the
crowd in executing that intent."
The second problem arising from the appellant's
evidence related to his assertion that he did not continue
with the assault up to the end. On his version he was not
present at the second stage of the assault, when the deceased
threatened the mob and they set upon her again. On the
evidence there is at least a reasonable possibility that the
deceased's fatal injuries were inflicted at this second
11
stage. This raised the question whether the accused could
properly be
convicted of murder where he had discontinued his
assault on the deceased
prior to her receiving mortal
injuries. In considering this issue, the court accepted the
appellant's
evidence as being true (at least as a reasonable
possibility) but
nevertheless found him guilty of murder on
the following basis:
"In this case the accused at no stage even says that he had a change of mind or
a change in intention. He simply stopped because
he says his shoulder was
injured. I think his position can be for the purpose of principle compared with
a man who actively associates
in the execution of the common purpose and at the
stage when becoming out of breath or becoming tired stops actively participating
just for that reason, but not because he mentally wanted to disassociate himself
from the actions of the other perpetrators whose
actions are also regarded to be
his."
However, the learned trial judge granted
the
appellant leave to appeal "on the question as to whether his
discontinuance of participation in the assault on the
deceased under the circumstances as found by this Court,
amounts to a disassociation from the common purpose to kill
12
the deceased which would relieve him of responsibility for her murder".
On
appeal before us Mr. Renke, who appeared for the appellant, took two points. The
first was that the appellant had not been proved
to have had the common
intention with the other assailants of the deceased to kill her. He conceded
that he had not raised this issue
when applying for leave to appeal, and that it
is not covered by the leave which the learned Chief Justice granted. However,
relying
on what was said in
S. v. Safatsa and Others
1988(1) SA 868 (A)
at p. 877 B-F, he requested this court nevertheless to allow him to raise this
argument.
As appears from the passage in
Safatsa
's case on which Mr. Renke
relied, the merits of an argument will be an important factor in the court's
decision whether or not to
allow the argument to be raised even though it is not
covered by the leave granted. Now, regarding the appellant's state of mind,
it
can hardly be doubted that when he joined the
13
initial assault on the deceased, he and the rest of the mob, (or, at least,
those members who actively participated in the attack)
had the common intention
to kill the deceased. I have summarized the trial court's reasons for holding
that the appellant had the
intent to kill and they appear to me to be entirely
convincing.
However, the argument proceeded as follows. There were, it was
argued, not one but two assaults on the deceased. The first came to
an end when
the mob started dispersing after the deceased had been left lying on the ground.
The second commenced when the deceased
approached the dispersing mob, threatened
them, and was again assaulted, this time fatally. The court erred, Mr. Renke
submitted,
in regarding this second assault as merely a continuation of the
first assault. In fact it was a separate one, and the appellant
could only be
convicted in respect of the second assault if he had joined into a fresh common
purpose in respect of that assault.
Since he had not done
14
so, it was contended, he could not be convicted of a murder perpetrated in
the course of that assault.
This argument raises the question whether the
appellant was a party to the second assault. This is in effect the question in
respect
of which the trial judge granted leave to appeal, although he approached
it somewhat differently. The trial court's finding, it seems,
was that there was
in essence only one assault. When considering the appellant's liability for the
second assault (or, as the court
regarded it, the second stage of the assault),
the court consequently saw the question as one of dissociation from an existing
common
purpose, rather than as one of joining into a new common purpose.
Whatever the position may be in theory or in other factual situations,
I do not
think that on the facts of the present case it makes any difference to the
result whether we adopt the approach of the court
a
quo
or that suggested
by Mr. Renke. There is, accordingly, no need to consider arguments which go
outside the ambit of
15
the terms in which leave to appeal was granted.
That brings me to the
question of dissociation. In considering this question one must proceed from the
premise that there was in essence
one fatal assault committed in concert by a
number of persons and that the appellant initially was associated in a common
purpose
with the others. It is clear that, if the appellant had effectively
dissociated himself from the common purpose prior to the infliction
of the fatal
injuries on the deceased, he could not be convicted of her murder. See
S. v.
Nzo and Another
1990(3) SA 1 (A) at p. 11 H-I. What is less clear, however,
is what tests are to be applied in this regard. There are several authorities
on
this topic in our courts and those of Zimbabwe, but most of them deal with
common purpose arising from express agreement or conspiracy.
Thus
R. v.
Chinyerere
1980(2) SA 576 (RAD);
S. v. Ndebu and Another
1986(2) SA
133 (ZS);
S. v. Nzo and Another
(
supra
) and
S. v. Beahan
1992(1) SACR 307 (ZS) were all conspiracy cases.
S. v.
16
Nomakhlala and Another
1990(1) SACR 300 (A) was not really a
case
of dissociation from a common purpose at all. In that
case the court held
that the appellant had never in fact
associated himself with a common purpose to kill the
deceased. His
dissociation from actions of the murderers
served to demonstrate his lack of association with the common
purpose rather then to constitute dissociation therefrom.
In
Beahan
's case (
supra
) at p. 324 b GUBBAY CJ
considered it the shared approach of earlier cases and
commentators that it is the actual role of the conspirator
which should determine the kind of withdrawal necessary to
effectively terminate his liability for the commission of the
substantive crime. He then continued (at p. 324 b-c):
"I would venture to state the rule this way: Where a person has merely
conspired with others to commit a crime but has not commenced
an overt act
toward the successful completion of that crime, a withdrawal is effective upon
timely and unequivocal notification to
the co-conspirators of the decision to
abandon the common unlawful purpose. Where, however, there has been
participation in a more
substantial manner something further than a
communication to the co-conspirators of the intention to dissociate is
necessary. A reasonable
17
effort to nullify or frustrate the effect of his contribution is
required."
The approach followed in
Beahan
's case, and earlier
authorities, and the rule stated by GUBBAY CJ, are not of any
real
assistance for the purposes of the present case, where
we are not dealing
with the position of co-conspirators. We
are also not dealing with a person
who incited or instigated
others to commit an offence, where the position might also be
different. Our case is similar to those which have been
considered in a number of recent decisions of this court,
where a common purpose arose otherwise than by prior
agreement, and was manifested simply by conduct. See
S. v.
Safatsa and Others
(
supra
);
S. v. Mqedezi and Others
1989(1) SA 687 (A);
S. v. Motaung and Others
1990(4) SA 485
(A) and
S. v. Khumalo en Andere
1991(4) SA 310 (A). It is
clear that in such cases liability requires, in essence, that
the accused must have the intent, in common with the other
participants, to commit the substantive crime charged (in
this case, murder) and that there must be an active
18
association by him with the conduct of the others for the attainment of the
common purpose.
If these two requirements are necessary for the creation of
liability on the grounds of common purpose, it would seem to follow that
liability would only continue while both requirements remain satisfied, or,
conversely, that liability would cease when either requirement
is no longer
satisfied. From a practical point of view, however, it is difficult to imagine
situations in which a participant would
be able to escape liability on the
grounds that he had ceased his active association with the offence while his
intent to participate
remained undiminished. One must postulate an initial
active association to make him a participant in the common purpose in the first
place. If he then desists actively participating whilst still retaining his
intent to commit the substantive offence in conjunction
with the others, the
result would normally be that his initial actions would constitute a sufficient
active association with the
19
attainment of the common purpose to render him liable even for conduct of the
others committed after he had desisted. This would cover
the case, mentioned by
way of example in the judgment
a quo
, of a person who, tiring of the
assault, lags behind or stands aside and allows others to take over. Clearly he
would continue to
be liable. However, where the participant not only desists
from actively participating, but also abandons his intention to commit
the
offence, he can in principle not be liable for any acts committed by others
after his change of heart. He then no longer satisfies
the requirements of
liability on the grounds of common purpose.
The test for dissociation which I have stated above will often be difficult
to apply, but ultimately it is a question of fact and
evidence. The accused
starts with the problem that,
ex hypothesi
, he was an active participant
in the common purpose, and a court may well be sceptical of his avowal of
abjuration. Nevertheless
here as elsewhere the
onus
is on the
prosecution. If in a case of murder a court
20
has a reasonable doubt whether at the critical stage when the deceased
received his or her mortal wounds the accused was still a party
to the common
purpose of those assaulting the deceased, the accused is entitled to the benefit
of the doubt.
All that remains is to apply the above principles to the facts of the present
case. It is accepted that after throwing two stones
the appellant was hurt and
left the scene to go home. It is clear that at that stage he decided to end his
active participation in
the assault, and it is at least a reasonably possible
inference that he also abandoned his intent to kill the deceased. It is true
that his change of intent was not, on the evidence, caused by moral
considerations, but this does not seem relevant. The question
is a purely
factual one: did he cease having the intent to kill? Nor do I think it is
decisive that the appellant himself did not
say that he had changed his intent.
His attitude was throughout that he did not intend to kill
21
the deceased. On his version there could accordingly be no question of a
change of intent. He was disbelieved on this score in regard
to the earlier part
of the assault, but there must in my view be at least a reasonable doubt whether
he continued having the intent
after he left for home. His actions would seem to
indicate the contrary. And in the circumstances there was, in my view, nothing
more which he could have been expected to do to demonstrate a change of
intention.
For the reasons aforestated, I consider that the appellant effectively
dissociated himself from the actions of the crowd before the
deceased received
her fatal wounds. He could accordingly not be found quilty of murder and his
conviction must be set aside. However,
he did actively participate in the attack
on the deceased during the initial stage of the assault, and he clearly did so
with the
intent to kill her. He was accordingly, in my view, quilty of attempted
murder and a conviction for this offence must be
22
substituted.
This then leaves only the question of sentence. The sentence
imposed by the court
a quo
on the appellant was a light one. Accused nos.
1, 2 and 3 received the same sentence (special considerations required different
sentences
in the cases of accused nos. 6 and 7). In showing clemency the court
was influenced by the facts that the accused were young persons
attending
school, who believed they were killing a witch. To this one should add that they
believed they were carrying out the wishes
of their chief. These are obviously
all cogent factors. Where the appellant's conviction is now reduced to one for
attempted murder,
it seems right that he should be sentenced to a lighter
sentence than had been imposed on him and his co-accused for murder. Mr.
Ramaite, who appeared for the State, suggested that a sentence of five years
imprisonment with four years suspended, would be appropriate.
In the
circumstances of the present case I agree. In the result the following order
is
23
made:
The appeal is allowed. The conviction of murder is set aside and replaced
with a conviction of attempted murder. The sentence is set
aside and replaced
with the following:
Five (5) years imprisonment of which four (4) years are suspended for five
(5) years on condition that the accused is not convicted
of an offence of which
violence to the person of another is an element, committed during the period of
suspension and for which he
is sentenced to imprisonment without the option of a
fine.
E M GROSSKOPF, JA
N1ENABER, JA
VAN COLLER, AJA Stem
saam