Brief Summary

Criminal Law — Accessory after the fact — Conviction of police officers for failing to report crimes — Three police officers convicted as accessories after the fact for their involvement in arson and murder, having failed to report the crimes committed by their colleagues — The State contended that the appellants should have been convicted of murder instead of being found guilty as accessories — The court held that a police officer has a legal duty to report crimes and that failure to do so, with the intention to assist the perpetrator to evade justice, constitutes accessorial liability — Convictions upheld.

Comprehensive Summary

Summary of Judgment

1. Introduction

These were criminal appeals to the Supreme Court of Appeal against convictions entered in the Natal Provincial Division. The appellants were Devan Williams (first appellant), Norman Mchunu (second appellant), and Kriementhren Maistry (third appellant), each of whom had been an accused in the trial court. The respondent was the State.

After a lengthy trial, all accused were convicted on certain counts and sentenced to substantial terms of imprisonment. With leave of the trial court, the present appeals were confined to those counts on which each appellant had been convicted only as an accessory after the fact. The first appellant appealed his convictions on count 1 (arson) and counts 10 and 11 (murder); the second appellant appealed on count 5 (murder); and the third appellant appealed on counts 5 and 8 (murder).

The State not only opposed the appeals but also sought, in respect of the first appellant on count 10 and the third appellant on count 5, an alteration of the verdicts to murder in terms of section 322(1)(b) of the Criminal Procedure Act 51 of 1977, contending that the trial court ought to have convicted them as perpetrators (or participants) rather than as accessories after the fact.

The subject-matter of the dispute concerned the requirements for accessorial liability after the fact, particularly whether and when a police officer’s failure to report a crime can constitute the conduct element of being an accessory after the fact, and whether the evidence established the necessary intention to assist the perpetrators to evade justice on each of the relevant counts. A further issue arose from the State’s attempt to attribute murder liability to the first appellant on count 10 on the basis of an omission to prevent the killing.

2. Material Facts

All accused were members of the South African Police at the relevant time, with duties regulated by the Police Act 7 of 1958 (later replaced by the South African Police Service Act 68 of 1995). The record indicated, and it was not materially in dispute, that (save for one count not relevant to these appeals) the offences were instigated primarily by Singh and/or Ramdas, who were portrayed as the drivers of the criminal conduct.

Only the first and third appellants testified in their defence. The general circumstances surrounding the commission of each offence were largely not disputed, and the appeals turned mainly on the appellants’ knowledge, conduct after the fact, and intention.

On count 1 (arson), it was undisputed that Singh and the second appellant (and possibly Ndaba) set fire to Mrs Thaver’s shop during the night of 27 September 1992. The factual basis for the first appellant’s conviction was derived largely from his own account accepted by the trial court. He accompanied a group (including Ramdas, Singh, the second appellant, Ndaba, and another constable) in an official vehicle to the vicinity of the shop, noticed the smell of petrol, remained in the vehicle while Singh and others broke a window and ignited petrol inside the shop, observed the fire, and returned home. He was told by Ramdas not to tell anyone. He did not report the incident and only mentioned it later, after investigations had implicated him in other matters.

On count 5 (murder of Solomon Dlamini on 19 November 1992), the deceased had laid a malicious injury to property charge connected to damage to a taxi, and a summons was served on the third appellant on the day of the killing. The deceased was taken from his home by police officers on the pretence of signing a statement. A police van travelled to the Shongweni area, where the deceased was forcibly removed, shot, and thrown from a bridge. The trial court found that Singh and Ramdas were the instigators; it convicted Singh, Ramdas, and the first appellant of murder. It found that there was no proof that the second and third appellants had shared a common purpose to kill before reaching the bridge. The second appellant remained near the van at the bridge and did not participate in the shooting or disposal of the body, but he did not report the crime; evidence also showed that he participated after the event in cleaning blood from the van door. The third appellant had participated up to the point of taking the deceased from his home and admitted assisting in pulling him from the van; he was present when the deceased was killed. The trial court nonetheless found no proof of his prior common purpose to kill and convicted him as an accessory after the fact, relying on his failure to report and on conduct including the forging of a petrol register to mislead investigators about the vehicle’s use.

On count 8 (murder of Sathanathum Padayachee on 30 November 1992), the third appellant travelled with a group to Kadirvel Road. Ramdas instructed that the second appellant and Ndaba would approach a particular house and shoot whoever opened the door. The second appellant shot the deceased, who died from a chest wound. The trial court was not satisfied that the third appellant shared a common purpose to kill, but accepted that he knew of the plan and later knew of the shooting and of the perpetrators. He failed to report the crime. He asserted that Ramdas later threatened him and his wife, which he relied on as justification for not reporting.

On count 10 (murder of Sipho Zulu on 3 December 1992), Singh, the second appellant, and Ndaba abducted the deceased, who had instituted a civil claim against Singh and the second appellant. Singh fetched the first appellant from his home, and the first appellant joined the group. Singh later informed the first appellant at the scene that he was going to shoot the deceased. The deceased was removed from the vehicle and Singh shot him. The body was initially left at the scene and later buried by others; the first appellant did not participate in the burial. The trial court rejected evidence suggesting the first appellant physically assaulted the deceased at the scene and held that the first appellant did not share a common purpose to kill. It convicted him as an accessory after the fact on the basis of his non-reporting.

On count 11 (murder of Captain Durugiah on 21 April 1993), the first appellant and others travelled to Umkomaas. Ramdas changed number plates, armed himself, and demanded the first appellant’s service pistol. The first appellant refused, but Singh removed it from his holster and gave it to Ramdas, who altered it (including changing the barrel) and issued instructions for the shooting to be carried out by Aiyer and the second appellant. The murder was executed according to the plan. The first appellant remained in the vehicle during the shooting, later retrieved and replaced the original barrel. He subsequently provided false information and false alibi support to investigators regarding the movements of Ramdas and Singh, while also being absent from his duty station for most of the night.

3. Legal Issues

The central legal question concerned the elements of liability as an accessory after the fact, and specifically whether the appellants’ conduct—often framed as a failure to report crimes known to them—could satisfy the conduct requirement for accessorial liability, and whether the evidence established beyond reasonable doubt the required intention to assist the perpetrators to evade justice.

The dispute thus involved a combination of legal questions (the proper definition of an accessory after the fact; whether an omission can ground such liability where a legal duty exists), questions of application of law to fact (whether, on each count, the inference of the required intention was the only reasonable inference), and in some respects evaluative judgments (policy-based assessment of whether criminal liability should attach to a police officer’s failure to report).

A further issue arose from the State’s request that the Court alter the verdicts in terms of section 322(1)(b) of the Criminal Procedure Act 51 of 1977, particularly the contention that the first appellant ought to have been convicted of murder on count 10 based on an alleged intentional omission to prevent the killing, which required consideration of causation and the propriety of determining such omission-based murder liability on the record as it stood.

4. Court’s Reasoning

The Court treated the law relating to accessories after the fact as largely settled and proceeded on the basis that the obiter remarks in S v Morgan and Others 1993 (2) SACR 134 (A) correctly reflected South African law. It preferred the narrower approach to the definition of an accessory after the fact, namely that liability depends on assistance to the perpetrator to evade justice, rather than a broader notion of mere association with the offence.

The Court accepted as essential that the State must prove that the alleged accessory intended to help the perpetrators evade justice. It emphasised that this intention to assist in evading detection or conviction is a critical ingredient of accessorial liability, and it approached each count by asking whether the proved facts supported, as the only reasonable inference, that the appellant’s failure to report (and any additional conduct) was accompanied by that intention.

A substantial portion of the reasoning addressed whether a police officer’s accessorial liability could properly rest on an omission, specifically a failure to report a crime. The Court accepted that criminal liability for an omission generally presupposes a legal duty to act and also requires a policy-based inquiry into whether liability should be imposed in the relevant circumstances. It held that a police officer has a duty to report crimes, inter alia by virtue of statutory provisions—at the time, section 5 of the Police Act 7 of 1958, which included investigating crimes among the police’s functions. On policy considerations and comparative authority, the Court concluded that where the other requirements of accessory-after-the-fact liability are present, a police officer’s deliberate failure to report, undertaken with the intention of assisting perpetrators to evade justice, can ground conviction. It regarded any other conclusion as inconsistent with community expectations regarding police obligations.

In reaching that conclusion, the Court referred to authority supporting omission-based accessorial liability in a duty-bearing role, including Majara v The Queen [1954] AC 235 (PC) and S v Barnes and Another 1990 (2) SACR 485 (N), while noting that it was not deciding the broader and more general question of omission liability for failing to avert harm, which had been raised but left open in S v A en 'n Ander 1993 (1) SACR 600 (A). The Court also treated dicta in cases such as S v Gaba 1981 (3) SA 745 (O) and S v Binta 1993 (2) SACR 553 (C) as consistent with omission-based liability where a legal duty exists. It considered the remark in S v Madlala and Others 1992 (1) SACR 473 (N) and interpreted it as emphasising that intention is required, rather than establishing that a policeman’s failure to report can never coincide with the intention to assist evasion of justice.

Applying these principles to count 1, the Court rejected the contention that the trial court had assumed intention from the mere failure to report. It held that the trial court appreciated that intention had to be proved and that the first appellant’s conduct justified the inference that he intended to assist the perpetrators. The Court considered it material that the first appellant witnessed the arson being committed by identified colleagues, was warned to keep silent, and offered no explanation for his failure to report when asked. On his accepted version, he had not participated in the arson itself; accordingly, the Court considered that an alternative inference that he was merely protecting himself did not reasonably arise on the evidence.

On count 5, the Court upheld the second appellant’s conviction as an accessory after the fact. It accepted that the onus remained on the State to prove the necessary intention, despite the absence of evidence from the second appellant. It reasoned that the second appellant had not participated in the killing at the bridge and therefore “had nothing to hide” in that respect; his failure to report was therefore most reasonably explained as an intention to protect fellow officers from consequences. The Court treated the cleaning of blood from the van as additional conduct evidencing an intention to prevent detection by removing traces that could trigger inquiry.

Regarding the third appellant on count 5, the Court addressed both the State’s attempt to elevate liability to murder and the correctness of accessory-after-the-fact liability. It was not persuaded beyond reasonable doubt that the third appellant knew or foresaw that the deceased would be killed, even though he anticipated intimidation or assault and participated in removing the deceased from the van. It therefore did not accept the State’s submission that the verdict should be altered to murder. It nonetheless upheld the accessory-after-the-fact conviction, relying not only on non-reporting but also on the forging of a petrol register to mislead authorities, and inferred the intention to assist perpetrators. The Court held that even if the third appellant also aimed to protect himself due to his involvement up to a point, that did not exclude accessory-after-the-fact liability where he also intended to assist the principal offenders, referring in that regard to R v Sikepe and Others 1946 AD 745.

On count 8, the Court upheld the third appellant’s conviction as an accessory after the fact. It treated the inference of intention as “self-evident” given his knowledge of the plan, the commission of the murder, and the identity of the perpetrators, coupled with his failure to report. It rejected the argument that Ramdas’ later threats provided a valid justification for non-reporting, holding that the third appellant could and should have reported through alternative channels, including approaching senior officers, particularly given that police officers were implicated.

On count 10, the Court declined the State’s request to substitute a murder conviction for the first appellant. It treated the State’s case as one of murder liability based on an omission to avert harm, which required proof of a causal connection between the omission and the death. While acknowledging the first appellant’s admission under cross-examination that he had the power to prevent the murder, the Court held that guilt had to be determined from objective facts, and it was not established beyond reasonable doubt that intervention would have succeeded in the circumstances. The Court emphasised that other participants were present, aligned with Singh, and could have prevented effective intervention; these matters had not been explored at trial, and the Court regarded it as impermissible to found murder liability on speculation and a potentially ill-considered concession.

The Court nevertheless upheld the first appellant’s conviction as an accessory after the fact on count 10. On the accepted facts he was a spectator, did not share a common purpose to kill, and even claimed to have tried to dissuade Singh. His failure to report was regarded as explicable only as an intention to assist his colleagues to evade conviction. The Court rejected the suggestion that fear of Singh reasonably explained the non-reporting, considering the relationship between the first appellant and Singh and the broader context of loyalty and concealment within the group.

On count 11, the Court accepted that the first appellant did not have a common purpose to kill Captain Durugiah, but held that his post-offence conduct supported accessory-after-the-fact liability. It treated his false statements and the provision of false alibis to investigators as clear acts intended to assist Singh and Ramdas to avoid detection. Although it accepted that he may also have wished to protect himself due to being absent from duty, it held that the false information he conveyed was given in response to direct questions about Singh and Ramdas’s involvement and could not be viewed as lacking an intention to assist them. The Court again relied on R v Sikepe and Others 1946 AD 745 to support the proposition that self-protective motives do not necessarily negate an intention to assist perpetrators.

5. Outcome and Relief

The Supreme Court of Appeal dismissed all the appeals against the convictions as accessories after the fact on the relevant counts.

The Court also refused the State’s request to alter the verdicts to murder in respect of the first appellant on count 10 and the third appellant on count 5, concluding that the evidential and legal basis for such substitutions had not been established on the record.

The judgment, as provided, does not set out any separate or additional order as to costs, and the matter proceeded as a criminal appeal with the operative result being dismissal of the appeals.

Cases Cited

S v September 1996 (1) SACR 325 (A).

S v Morgan and Others 1993 (2) SACR 134 (A).

S v A en 'n Ander 1993 (1) SACR 600 (A).

Majara v The Queen [1954] AC 235 (PC).

S v Barnes and Another 1990 (2) SACR 485 (N).

R v Munango and Another 1956 (1) SA 438 (SWA).

S v Gaba 1981 (3) SA 745 (O).

S v Binta 1993 (2) SACR 553 (C).

S v Madlala and Others 1992 (1) SACR 473 (N).

R v Sikepe and Others 1946 AD 745.

Legislation Cited

Criminal Procedure Act 51 of 1977, section 322(1)(b).

Police Act 7 of 1958, section 5.

South African Police Service Act 68 of 1995.

Rules of Court Cited

No rules of court are referred to in the judgment as provided.

Held

The Court held that, on the approach accepted as reflecting South African law, an accessory after the fact is one who, with the requisite intention, assists the perpetrator to evade justice, and that this is the preferable (narrow) approach to defining accessorial liability after the fact.

The Court further held that a police officer’s deliberate failure to report a crime, where the officer has knowledge of the commission of the offence and the identity of the perpetrators, can constitute conduct sufficient for accessory-after-the-fact liability, provided the State proves beyond reasonable doubt that the omission was accompanied by an intention to help the perpetrators evade detection or conviction.

On the facts of each count under appeal, the Court held that the trial court’s findings of accessory-after-the-fact liability were supported, including by additional conduct such as cleaning blood from a police vehicle and falsifying records and alibis. The Court was not persuaded that the evidence justified substituting murder convictions for accessory-after-the-fact convictions sought by the State, particularly where murder liability was premised on an omission to avert harm and the required causal and factual foundations were not established beyond reasonable doubt.

LEGAL PRINCIPLES

Accessory-after-the-fact liability in South African law, on the approach accepted in the judgment, is governed by the principle that the accessory must assist the perpetrator to evade justice, rather than merely associate broadly with the offence after its commission. This reflects a preference for a narrower definition of accessorial liability after the fact.

A further controlling principle is that the State must prove intention on the part of the alleged accessory, namely an intention to assist the perpetrator to avoid detection, arrest, conviction, or punishment. The fact of non-reporting, even by a duty-bearer, is not treated as automatically equating to the requisite intention; it remains a matter of inference from all proved facts.

Where liability is sought to be based on an omission, criminal responsibility depends on the presence of a legal duty to act, and on a policy assessment consistent with the legal convictions of the community. In the specific context of police officers, statutory functions and duties (including the duty to investigate crime) support the existence of a duty to report and act upon knowledge of serious offences.

In applying these principles, the judgment illustrates that intention to assist evasion of justice may be inferred not only from a failure to report, but also from active concealment and misleading conduct, such as removing incriminating traces, falsifying official records, or providing false information and alibis during investigations.

Finally, where a party seeks to extend criminal liability for a substantive offence (such as murder) on the basis of an omission to prevent harm, the judgment proceeds on the basis that causation and factual foundations must be proved on objective evidence beyond reasonable doubt, and that such liability should not be imposed where the record does not establish that intervention would probably have prevented the death, particularly in circumstances involving other armed and aligned participants.

S v Williams and Others (316/96) [1998] ZASCA 55; [1998] 3 All SA 262 (A) (1 June 1998)