Summary of Judgment

Introduction

The matter concerned a criminal appeal in the Supreme Court of Appeal arising from convictions for housebreaking with intent to rob, robbery with aggravating circumstances, and murder. The proceedings before the Supreme Court of Appeal took the form of an appeal brought by four accused persons against aspects of their convictions and sentences imposed by the trial court.

The parties were Freddy Dumako Masango (first appellant), Phillip Seiko Phiri (second appellant), Willem William Masilela (third appellant), and Willem Mabena (fourth appellant), as appellants, against the State as respondent.

Procedurally, the four appellants were tried in the Transvaal Provincial Division before Els R and two assessors. All four were convicted of housebreaking with intent to rob, robbery with aggravating circumstances, and murder, and all four were sentenced to death for the murder count. Separate terms of imprisonment were imposed for the housebreaking and robbery counts. An appeal against the murder conviction and sentence was noted in terms of section 316A(1) of the Criminal Procedure Act 51 of 1977 on behalf of all four appellants. However, the first and second appellants later withdrew their appeals against the murder convictions, leaving their appeals directed only at sentence. The third and fourth appellants persisted with appeals against both conviction and sentence on the murder count.

The general subject matter of the dispute in the Supreme Court of Appeal was whether, on the evidence and accepted facts, the appellants were correctly convicted of murder (in circumstances where individual roles in the killing could not be precisely determined), and—separately—what the consequence was for the death sentences following the Constitutional Court’s decision invalidating capital punishment.

Material Facts

It was accepted (and ultimately conceded in argument on behalf of the third and fourth appellants) that on the evening of 16 April 1991 the four appellants acted together in breaking into the deceased’s dwelling and robbing him of R30 000 in cash and other items. The court noted that, given the evidence led at trial (including fingerprint evidence, recovery of stolen property, and confessions), the concession that all four participated in the break-in and robbery was properly made.

It was not disputed that the deceased was a 76-year-old man who was killed during the robbery. The deceased lived in a house on his son’s farm, together with a friend. During the break-in, the friend apparently fled and fetched the deceased’s son, who lived some distance away. On arrival, the son found the deceased dead on his bed with his hands and feet bound with wire. Post-mortem evidence established the cause of death as strangulation, and expert evidence indicated injuries consistent with a reasonable degree of violence, including a fracture of the hyoid bone.

The trial court, despite finding that all four appellants participated in the break-in and robbery, could not make a definitive finding on the available evidence as to each appellant’s specific role in the killing itself. The positions adopted by the appellants at trial differed. The first and third appellants denied being present at the scene, and the fourth appellant remained silent. The second appellant testified that he and two unknown persons broke in; he admitted binding the deceased’s hands but claimed he did nothing further to him.

Two confessions were material to the issues considered on appeal. The third appellant, in a confession to a magistrate, stated that while they were inside the house, a person named “Willem” struck a “white” person with an iron, and that the third appellant helped to hold the deceased. The fourth appellant, in his confession to a magistrate, referred to the place “where we killed the white man,” and stated that “Freddie” grabbed one of the white men by the throat and pressed with his knee on the man’s stomach.

Additional facts relied upon by the court concerned the manner of execution of the housebreaking and robbery. Before entry, the telephone wire leading to the house was cut and a piece removed; the deceased was apparently bound with wire, and the telephone wire inside the house (at the receiver) was also cut. Entry was gained through a window by cutting the pane rather than breaking it, which avoided noise. A pipe was found on the floor of the deceased’s bedroom, and the second appellant said he had been armed with an iron object, which the court regarded as partially supported by the discovery of the pipe.

Legal Issues

The central legal question was whether, on the facts accepted or proved, the evidence was sufficient to sustain convictions of murder against each appellant, particularly in circumstances where the trial court could not determine precisely who performed the fatal act. This was an issue of the application of legal principles to facts, focusing on whether each participant in the robbery had the necessary mens rea for murder in the form of dolus eventualis, even if not the direct killer.

More specifically, the court had to determine whether, in the execution of the agreed criminal enterprise (housebreaking and robbery), each appellant foresaw the possibility that one or more of the co-perpetrators might kill the victim, and nevertheless persisted, reconciling themselves with that outcome. That inquiry required an inferential assessment from the manner in which the robbery was planned and executed, and the circumstances known to the appellants.

A further legal issue, directed primarily to sentence, was the effect of the Constitutional Court’s decision declaring the death penalty invalid, namely whether the death sentences could stand and, if not, what the appropriate appellate response should be.

Court’s Reasoning

On the merits relating to murder, the court approached the matter on the footing that, although there was a common purpose to break in and rob, the decisive question was whether murder liability could be established for each appellant through dolus eventualis. The court articulated the test in terms of whether an accused who did not personally kill nevertheless foresaw that a co-robber might kill in the course of executing the planned robbery, and proceeded regardless, thereby reconciling himself to that possible consequence. In this connection, the court referred to authority addressing foresight and reconciliation with consequences in the context of group criminal conduct.

Applying those principles to the facts, the court considered the circumstances of the robbery as demonstrating a planned and deliberate strategy to surprise the occupants and prevent them from calling for help. The cutting of the external telephone line and removal of a piece of it, coupled with the cutting of the internal telephone cord, were treated as objective indicators that the group anticipated the presence of people in the house and took steps to neutralise the risk of intervention. The method of entry—cutting the window pane rather than breaking it—was similarly treated as showing an intention to enter quietly and unexpectedly.

The court reasoned that these circumstances supported the inference that the appellants knew people were inside and that resistance to the break-in and robbery was a realistic possibility. The presence of a weapon (an iron object, supported to some extent by the later discovery of a pipe in the bedroom) reinforced the conclusion that the group contemplated the potential need to use force. The court expressly observed that the fact that a particular object may not ultimately have been used in the attack did not negate foresight of violence.

From the combination of these features—knowledge of occupants, efforts to disable communication, the stealthy means of entry, and the arming of at least one participant—the court held that the circumstances made the inference inevitable that each appellant foresaw not only the possibility of violence but also the possibility that the victim might be killed in the course of the robbery. On that basis, the court concluded that each acted with the requisite mens rea, at least in the form of dolus eventualis, and that the convictions of murder were therefore justified. The third and fourth appellants’ appeals against conviction were accordingly rejected.

On sentence, the court accepted that the Constitutional Court in S v Makwanyane and Another 1995(3) SA 391 (CC) had held the death penalty to be invalid from the date of the order in that matter (6 June 1995), and that death sentences already imposed could not be carried out. The court reasoned that the death sentences in this case therefore could not stand, had to be set aside, and had to be replaced with appropriate lawful sentences. It considered that the matter should be remitted to the trial court for the imposition of appropriate sentences on the murder count for all four appellants, noting that this course was requested by counsel for the appellants and by the State’s counsel.

Outcome and Relief

The Supreme Court of Appeal dismissed the third and fourth appellants’ appeals against their convictions for murder. The murder convictions thus remained in place for all four appellants.

The court upheld the appeals by all four appellants against the death sentences imposed for murder. The death sentences were set aside in all four cases.

The matter was remitted to the trial court for the re-imposition of sentence on the murder count in respect of each appellant. The judgment excerpt does not record any separate or additional costs order.

Cases Cited

S v Malinga and Others 1963(1) SA 692 (A)

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

S v Shaik and Others 1983(4) SA 57 (A)

S v Makwanyane and Another 1995(3) SA 391 (CC)

Legislation Cited

Criminal Procedure Act 51 of 1977, section 316A(1)

Rules of Court Cited

No rules of court were cited in the judgment excerpt.

Held

The court held that, on the facts, the only reasonable inference was that each appellant foresaw the possibility that violence might be used against the occupants during the robbery and that the victim might be killed, and that each nevertheless persisted in the criminal enterprise, thereby acting with dolus eventualis. On that basis, the convictions for murder were confirmed (and the third and fourth appellants’ appeals against conviction were dismissed).

The court further held that, following the Constitutional Court’s decision invalidating the death penalty, the death sentences imposed on the appellants for murder could not be executed and had to be set aside. The appropriate course was to remit the case to the trial court to impose lawful sentences for murder on each appellant.

LEGAL PRINCIPLES

A participant in a planned criminal enterprise such as housebreaking and robbery may be convicted of murder even if the evidence does not establish that the participant personally performed the fatal act, provided the State proves that the participant had the requisite mens rea in the form of dolus eventualis. This entails proof, by inference from the circumstances, that the participant foresaw the possibility that a co-perpetrator might kill in the course of carrying out the agreed criminal conduct and nevertheless reconciled himself to that possibility by persisting with the enterprise.

In assessing foresight and reconciliation, a court may draw inferences from the objective features of the planned and executed conduct, including steps taken to neutralise resistance or prevent assistance being summoned, the manner of entry, and the presence of weapons or preparedness for violence. Where these features point compellingly to foreseen violence and possible death, a finding of dolus eventualis may be justified for all participants.

Where a sentence of death has been imposed, and subsequent constitutional authority renders the death penalty invalid, such death sentences cannot stand, must be set aside, and must be replaced with lawful sentences. The appellate court may remit the matter to the trial court for re-sentencing in accordance with the prevailing constitutional position.