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[1999] ZASCA 96
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S v Lungile and Another (493/98) [1999] ZASCA 96; [2000] 1 All SA 179 (A); 1999 (2) SACR 597 (SCA) (30 November 1999)
REPORTABLE
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
Case Number: 493 / 98
In the matter between
:
LUVUYO LUNGILE
First Appellant
SIYANDA MTULU
Second Appellant
and
THE STATE
Respondent
COURT
: Hefer JA, Harms JA, Olivier JA
DATE OF HEARING
: 16 November 1999
DATE OF JUDGMENT
: 30 November 1999
Murder - defences : compulsion; absence of common purpose; absence of
dolus
; dissociation; refusal to order separation of trials; lawfulness
of death of the deceased in cross-fire between accused and police.
Sentences.
JUDGMENT
OLIVIER JA
OLIVIER JA
[1]
On the morning of 2 August 1996, at approximately 09:00, a
robbery
occurred at Scotts, a shop in Main Street, Port
Elizabeth. A policeman (De Reuck) arrived on the scene. Several shots were
fired
between De Reuck and one of the robbers, the Second Appellant. At the
end of the meleé an employee of Scotts, Maggie Jacobs,
was dead, killed
by a gunshot wound through the lungs and heart; De Reuck and the Second
Appellant were injured; another robber,
Toboshe, made good his escape, and the
First Appellant was captured by a policeman on the pavement outside the front
door of Scotts
with the stolen money and jewellery in his possession.
[2]
At the trial, Kroon J convicted the Appellants of robbery and murder.
The Second Appellant was also convicted of being unlawfully in
possession of an unlicensed firearm and ammunition.
[3]
They were sentenced as follows:
First Appellant:
1 On count 1 (robbery) seven years’ imprisonment. It was ordered that
four years thereof run concurrently with the sentence
imposed on count 3.
2 On count 3 (murder) twelve years’ imprisonment.
Second Appellant:
1 On count 1 (robbery) seven years’ imprisonment. It was ordered that
four years thereof run concurrently with the sentence
imposed on count 3.
2 On count 3 (murder) fourteen years’
imprisonment.
3 On count 4 (possession of firearm) eighteen months’
imprisonment.
4 On count 5 (possession of ammunition) six months’
imprisonment to run concurrently with the sentence imposed on count
4.
[4]
Kroon J gave the Appellants leave to appeal to this Court against
the
convictions and sentences.
[5]
At the trial De Reuck as well as another policeman who captured the
First
Appellant and several of the employees of Scotts who were
on the scene of the robbery and murder, gave evidence, The Appellants
did not
testify.
[6]
I do not intend any discourtesy to counsel for the Appellants in
not
traversing all the arguments put forward. They readily
conceded that the learned judge
a quo
did not misdirect himself on any
factual issue. Indeed the judgment is commendably thorough and speaks of a
careful approach.
I will deal only with the major issues raised before
us.
[7]
The defence of compulsion raised by First
Appellant
The crux of this defence was stated by Mr Bursey,
who appeared for the First Appellant at the trial, in the latter’s plea
explanation
as follows:
“He was given instructions by this one Toboshe [the robber who escaped]
to collect various items that were being robbed.
Toboshe was in possession of
a firearm and accused no 1 was not in a position to refuse to carry out his
instructions as he feared
that Toboshe might then shoot him for failing to
obey.”
To Mrs Meavers, one of the State
witnesses, it was put :
“He says that he was told by Toboshe to collect the money and the
jewellery whilst Toboshe was holding the
gun.”
[8]
What was said in the plea explanation and what was put to the
State
witnesses do not amount to a defence of compulsion. It
was never put that First Appellant was in fact threatened or that threatened
harm was imminent or had commenced. These are essential elements of the defence
of compulsion (see
S v Kibi
1978 (4) SA 173
(EC)
at 181 B
- H;
Snyman
Strafreg
3
rd
edition
p 125
and authorities quoted in footnote 29). Even if the State witnesses had agreed
with what was put to them (which they did not
do) the defence would have come to
nought.
[9]
In any event, it is clear from the evidence of the State witnesses
that the
First Appellant was one of the group of four would-be
robbers that entered the premises of Scotts. Once inside the shop, he
associated
himself with the acts of the other robbers by guarding over some of
the employees who were lying on the floor, obviously having been
ordered to lie
down by either himself or one of the other robbers. It was never part of the
plea explanation or put to the State
witnesses that in this conduct First
Appellant acted under duress. A person who voluntarily joins a criminal gang or
group and participates
in the execution of a criminal offence cannot
successfully raise the defence of compulsion when, in the course of such
execution,
he is ordered by one of the members of the gang to do an act in
furtherance of such execution. As was said by Holmes JA in
S v
Bradbury
1967 (1) SA 387
(A)
at 404 H:
“As a general proposition a man who voluntarily and deliberately becomes a
member of a criminal gang with knowledge of its
disciplinary code of vengeance
cannot rely on compulsion as a defence or fear as an
extenuation.”
[10] The defence of absence of common purpose
On behalf of
the First Appellant it was argued that there was no proof on the basis of common
purpose that First Appellant was an
accomplice to the robbery or to the
murder.
[11]
It is clear that the conviction of robbery was not
based on the doctrine of common purpose, but on the direct acts of the First
Appellant
alluded to above: he was a member of the gang that entered Scotts,
obviously with the intention of committing a robbery; he actively
participated
in the robbery, guarding over some of the employees, taking money from a drawer
and removing watches and jewellery from
the employees and trying to make off
with the spoils.
[12]
As far as the murder charge is concerned,
the First Appellant’s conviction was based on common purpose. It was not
proved
that he was armed or that he fired any shot, but he was part of the gang
of four of which at least two were armed with firearms and
he actively
participated in the execution of the robbery. According to his own plea
explanation he was aware that Toboshe was in
possession of a firearm. Neither
in his plea explanation nor in what was put to any witness was it suggested that
he was not aware
that Second Appellant was armed. In fact, the State witnesses
all say that Second Appellant brandished his revolver from the outset
of the
robbery. The trial court found that First Appellant knew that Second Appellant
was armed.
[13]
It could be argued that First Appellant’s
flight from the shop when he saw De Reuck enter with a firearm demonstrated his
lack of association with any criminal common purpose. This argument would not
be based on dissociation from a common purpose, but
would be aimed at creating
doubt whether there had ever in fact been an association with a criminal common
purpose. This distinction
is subtle, but real, and has been made by this Court
before (see
S v Singo
1993 (1) SACR 226
(A)
at
232 g - h
per EM Grosskopf JA;)
S v Nomakhlala and
Another
1990 (1) SACR 300
(A)
at 303 g -
d).
[14]
Had there in the present case not been a prior agreement
to commit a crime this might have been a valid argument (see
S v Mgedezi
and Others
1989 (1) SA 687
(A)
at 705
I - 706 C and
S v Jama and Others
1989 (3) SA 427
(A) at 436 D - I). But, in view of
the prior agreement to commit a robbery and his participation in the execution
thereof as set
out above, the fact that the First Appellant left the scene
before the shooting started cannot avail him.
[15] The defence of absence of
dolus
on the part of the First
Appellant
On behalf of the first Appellant it was argued
that, even if he shared the common purpose of the gang to commit the robbery,
the State
had not proved that he had the necessary
dolus
in respect of
the murder.
Counsel for the State, on the other hand, argued that in
participating in the robbery the First Appellant could not but have foreseen
the
likelihood of resistance by the employees of Scotts, or by the security guards,
or the police, or by armed passers-by who became
aware of the robbery.
Well-knowing that at least two of the gang members were armed with firearms, he
must have foreseen that someone
might be injured or killed in a confrontation.
Nevertheless, he persisted in associating himself with the robbery. In such
circumstances
our Courts very often draw the inference that an accused foresaw
the possibility that a killing might ensue and, because he persisted,
reckless
of such consequences, he had the necessary
mens rea
in the form of
dolus eventualis
(see
inter alia
S v Mkhwanazi
[1998] 2 All SA 53
(A) at 56 b
-
d per FH Grosskopf JA; see also
S
v Maritz
1996 (1) SACR 405
(A)
at 415 a -
f for the
general approach).
[16]
But this Court has cautioned, on several
occasions, that one should not too readily proceed from “ought to have
foreseen”
to “must have foreseen” and hence to “by
necessary inference in fact did foresee” the possible consequences
of the
conduct inquired into.
Dolus
being a subjective state of mind, the
several thought processes attributed to an accused must be established beyond
any reasonable
doubt, having due regard to the particular circumstances of the
case (see
S v Ngubane
1985 (3) SA 677
(A) at 685 A - F
;
S v Stigling en ‘n Ander
1989 (3) SA 720
(A) at 723 C- D;
S v Bradshaw
1977 (1) P.H. H 60 (A);
S v
Sigwahla
1967 (4) SA 566
(A)
at 570 A
;
S v
Sephuti
1985 (1) SA 9
(A)
at 121;
S v
Maritz,
supra,
at 417 b- e;
S v Mamba
1990 (1)
SACR 227
(A)
at 236 j - 327 e).
[17]
In the present
case, the crucial question therefore is whether the State proved beyond
reasonable doubt that the First Appellant
in fact did foresee (“inderdaad
voorsien het”) that the death of a person could result from the armed
robbery in which
he participated. In this case, as in many others, the
question whether an accused in fact foresaw a particular consequence of his
acts
can only be answered by way of deductive reasoning. Because such reasoning can
be misleading, one must be cautious. Generally
speaking, the fact that the
First Appellant had prior to the robbery made common cause with his co-robbers
to execute the crime,
well-knowing that least two of them were armed, would set
in motion a logical inferential process leading up to a finding that he
did in
fact foresee the possibility of a killing during the robbery and that he was
reckless as regards that result.
[18]
In my view the inference is
inescapable that the First Appellant did foresee the possibility of the death of
an employee of Scotts:
he knew that at least two of his co-conspirators were
armed with firearms; he knew that Scotts is in the main street of Port
Elisabeth,
and that it is immediately opposite a police station; and he knew
that the robbery would take place in broad daylight. He nevertheless
participated in the robbery, helping to subdue some of the victims. The State
has consequently proved the necessary
mens rea
in the form of
dolus
eventualis
beyond reasonable doubt.
[19] The defence of dissociation
On behalf of First Appellant it was submitted that the fact that he had
left
the scene before the shooting started was an indication of
an effective dissociation with the robbery and its further
sequelae
.
[20]
The present case differs from
S v Singo
,
supra
,
where there was no prior
agreement and the common purpose was
manifested simply by conduct (see 233 a - c). It may well be the correct
position, as was
stated in
S v Beahan
1992 (1) SACR 307
(ZS) by
Gubbay CJ, that where there had been a prior agreement to commit a crime, and
participation to some substantial degree in
its execution, that something more
than a mere withdrawal is required to establish a legally effective
dissociation,
e.g.
a notification to the co-conspirators and a
nullification or frustration of the further implementation of the enterprise.
Whether
the
dictum
in
Beahan’s
case applies in our
law, and whether it is a rule of law or a rule of thumb, have been left open by
this Court in
S v Nduli and Others
1993 (2) SACR 501
(A)
at 504 d - j and 506 j - 507 b.
The matter need not be decided
in the case now before us, because it is clear that, on whatever view one takes
of the matter, there
was no effective dissociation. The First
Appellant’s mere departure from the scene is a neutral factor. It is
more likely
that he fled because he was afraid of being arrested, or of being
injured, or to make good his escape with the stolen money and goods.
It has,
therefore, not been established as a reasonable possibility that the First
Appellant dissociated himself from the planned
enterprise and its
sequelae
(
cf
S v Nduli and Others
, supra
, at 506
j).
[21] The application by First Appellant for a separation of
trials
Immediately after the close of the State case, Counsel
for the First Appellant applied for a separation of the trials of the two
accused.
The application was opposed by Counsel for the second accused (now
Second Appellant) and the State. It was discussed by the court
a quo
on
the basis of the decision in
S v Shuma and Another
1994 (2)
SACR 486
(E). On appeal it was submitted on behalf of the First Appellant that
the court
a quo
had misdirected itself in refusing the application, to
the prejudice of the applicant.
[22]
The
ratio
of the application was sketched as follows by Kroon
J in his
judgment:
“Mr
Bursey
advised me as follows. At that stage it was accused
no. 1's intention not to testify in the trial. He desired, however, to place
certain evidence by accused no. 2, details of which follow later, before this
court. Mrs
Crouse
had, however, advised him that accused no. 2 was not
prepared to waive his entitlement not to testify in the trial accorded to him
in
terms of
section 196
(1) (a) of the
Criminal Procedure Act, No 51 of 1977
. In
terms of that section accused no. 2, being a co-accused of accused no. 1, was a
competent but not a compellable witness on
the latter’s behalf. A
separation of trials would result in the position where accused no. 1 could
compel accused no. 2 to
testify in the former’s defence. Accused no. 1,
presumably as a result of some conversation that had taken place between
the two
accused, had advised him, Mr
Bursey
, that accused no. 2 will be able to
confirm his, accused no. 1's version as it was put to a large extent, namely in
respect of accused
no. 1's denial that he was in possession of a firearm or knew
that a robbery was to take place and his claim that he, the accused,
had been
taken by surprise in the shop, presumably, so it was to be inferred, when
Toboshe had set the robbery in train. I was
advised further that it was not
within accused no. 1's knowledge, presumably at present, whether the firearm in
Toboshe’s possession
was a real one or a toy.
In essence it was Mr
Bursey
’s submission that the evidence in
question would be material in the matter of the case against his client; that
its exclusion
would be prejudicial to accused no. 1 and would constitute a
denial of his constitutional right as contained in section 35 (3) (1)
of the
Constitution to have evidence adduced on his behalf as an accused in a criminal
trial; and accordingly, to prevent the accused
being deprived of a fair trial,
the separation of trials should be granted so as to result in the situation
where accused no. 2
was a compellable witness on behalf of accused no.
1.”
[23]
Section 157
(2) of the
Criminal Procedure Act reads
as follows:
“Where two or more persons are charged jointly, whether with the same
offence or with different offences, the court may at
any time during the trial,
upon the application of the prosecutor or of any of the accused, direct that the
trial of any one or more
of the accused shall be held separately from the trial
of the other accused, and the court may abstain from giving judgment in respect
of any of such accused.”
[24]
Kroon J held that the possible prejudice to the First Appellant if
the
application were refused did not weigh up against the
probable prejudice of the State and Second Appellant, and the resulting
inconvenience,
if the application were to be granted. But he refused the
application for an additional reason, which he formulated as follows:
“There was an additional feature. From accused no. 2's professed
attitude that he did not want to testify in the present
proceedings, it was fair
inference that he would have been an unwilling witness in any trial in which
accused no. 1 was the only
accused unless and until his own case had been
disposed of. He could well, and probably would, have refused to testify
pending
the finalisation of his own case. Mr
Bursey
’s counter
thereto was that the accused could not have lawfully refused to testify; he
could only have refused to answer any
questions which might have tended to
incriminate him. The answer thereto was twofold. I considered that an
accused, who has
a criminal case actually pending against him and refuses, by
reason of that circumstance, to testify in other proceedings on any
matters
connected with the subject of the pending case against him until same has been
disposed of, would probably have raised a
lawful excuse for not testifying.
Alternatively, he could contend that he is not really in a position to say what
answers he may
give, might, in the result, prove to be incriminating in the
sense of detracting from or having an adverse bearing on the validity
of any
defence he would raise in his own case. It would therefore be unfair to
require him to testify until his own case had been
disposed of. Such a
contention would have had much to commend itself. It might well have been
therefore that the case against
accused no. 1 would have been ordered to stand
postponed until accused no. 2's own case had been finalised. Delaying the
finalisation
of both cases would have been the result. In the event of accused
no.2, in his case, seeking to secure the benefit of evidence
by accused no. 1, a
likelihood which could not be excluded, the latter might well have adopted the
attitude that he should not be
required to testify until his case has been
finalised. An impasse would have resulted which could only have been resolved
by the
court ordering one or other case to proceed whether with or without the
evidence of the other accused.”
I cannot
fault the refusal of the application by the learned judge
a quo
for the
reasons stated by him. I wish only to add that the right of an accused to
subpoena
a co-accused as witness cannot override the right of the latter
not to incriminate himself or to remain silent at his
trial.
[25]
On behalf of the Second Appellant:
It was
argued that if the fatal shot came from De Reuck’s revolver, and the
Second Appellant cannot be held liable because De
Reuck’s action was not
unlawful. Alternatively it was argued that De Reuck’s action was a
novus actus interveniens
, unforeseeable by the Second
Appellant.
[26]
The trial court was unable to find from whose gun
the fatal shot came. Second Appellant had fired one shot only; De Reuck five.
On behalf of Second Appellant it was submitted that he must be given the benefit
of the doubt on this aspect. I will, in what follows,
assume that in the
cross-fire between Second Appellant and De Reuck, the latter fired the fatal
shot.
[27]
It stands to reason that, in causing the death of the
deceased, De Reuck acted neither unlawfully nor intentionally. But it also
follows that factually the Second Appellant, as well as De Reuck, caused the
deceased’s death.
[28]
That De Reuck’s act was not
unlawful, does not bring about that Second Appellant also acted lawfully. De
Reuck acted in necessity
(“noodtoestand”), whereas Second Appellant
acted in the execution of a crime. The acts of the former are justified
in
law; not so the acts of the latter (see
Snyman,
Strafreg
,
3
rd
edition
109 - 110).
[29]
It follows that it
does not avail Second Appellant to rely on the lawfulness of De Reuck’s
acts : the death of the deceased
was brought about by an unlawful act or acts
of the Second Appellant,
viz
the implementation of the robbery, the
physical assault on the deceased and the participation in the gun
battle.
[30]
Neither can it be said that the intervention of de
Reuck was a
novus actus interveniens
. In our law, a
novus actus
interveniens
is an event which is, in the context of the act that was
committed, abnormal, and completely independant of the acts of the accused
(see
S v Grotjohn
1970 (2) SA 355
(A)
at 364 A
;
see also
S v Mokgethi
1990 (1) SA 32
(A)
at 40
A).
[31]
The death of the deceased caused by a gunshot fired in
the course of a gun battle between the Second Appellant and De Reuck was not
abnormal, unforeseeable or independant of the acts of the robbers. As
indicated earlier, it was foreseeable that a policeman could
enter upon the
scene, that a gun battle could ensue (why else did the robbers take firearms
with them?) and that an innocent party
might be injured or killed in the
crossfire, whoever fired the harmful shot or shots. The
novus actus
defence cannot be upheld.
[31]
No other arguments having been put forward, the convictions of both
the
Appellants must be upheld.
[32] Sentences
It was not submitted that the court
a
quo
misdirected itself in imposing the
sentences referred to above. Nor
can it rightfully be said that the sentences were such that no reasonable court
could have imposed
them. In the light of the circumstances of the case and the
prevalence of armed robberies in our country, the sentences are not
so severe
that this Court ought to interfere.
[33]
In the result, the appeals of the Appellants against their
convictions and
sentences are dismissed.
PJJ OLIVIER JA
CONCURRING :
HEFER JA
HARMS JA