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[2018] ZASCA 20
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Phetoe v S (1361/2016) [2018] ZASCA 20; 2018 (1) SACR 593 (SCA) (16 March 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1361/2016
In
the matter between:
TEBOGO
PATRICK LEDWABA
PHETOE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Phetoe
v State
(1361/2016)
[2018] ZASCA 20
(16 March 2018)
Coram:
Leach,
Mocumie JJA and Plasket AJA
Heard:
16
February 2018
Delivered:
16
March 2018
Summary:
Criminal
law and Procedure – conviction of rape as an accomplice not
correct – all elements of the crime including mens
rea to be
satisfied - association or mere presence at the scene of the
commission of the crime, not necessarily proof of assistance
or
encouragement.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Mokgoatleng and
Kumalo JJ and Dama AJ sitting as court of appeal):
(a)
The appeal succeeds in respect of all counts except count 9.
(b)
The order of the court a quo is set aside and replaced with the
following order.
‘
(i)
The appellant’s conviction and sentence in respect of count 9
are confirmed.
(ii)
The appellant’s convictions and sentences in respect of the
remaining counts are set aside.
JUDGMENT
Mocumie
JA (Leach JA and Plasket AJA concurring):
[1]
The appellant stood trial in the Gauteng High Court Division,
Johannesburg (the trial court), with six co-accused on eight counts
of housebreaking with intent to rob and robbery with aggravating
circumstances, eight counts of common law rape perpetrated on
numerous complainants, one count of attempted robbery, three counts
of assault with intent to do grievous bodily harm, two counts
of
malicious damage to property and two counts of assault. In January
2000, he was convicted on all counts and sentenced to life
imprisonment in respect of the rape convictions as well as sentences
ranging from two to 20 years’ imprisonment in respect
of the
other convictions.
[2]
In May 2000, the appellant’s application for leave to appeal
against his convictions and sentences was dismissed. In November
2012, this court granted the appellant leave to appeal to a full
court of the Gauteng Division, Johannesburg. In June 2016, a majority
of the full court upheld the appellant’s appeal against his
convictions on the eight counts of common law rape and substituted
them with convictions as an accomplice to those rapes. As the basis
for these convictions had changed, the majority of the full
court set
aside the eight sentences of life imprisonment, reconsidered sentence
and re-imposed eight sentences of life imprisonment.
The appellant’s
appeal against the remainder of his convictions and sentences were
dismissed. In a minority judgment, Dama
AJ would have set aside all
of the convictions and sentences but for count 9, it being a count of
robbery with aggravating circumstances
for which the appellant had
been sentenced to 15 years’ imprisonment.
[3]
The appellant has now appealed to this court against his convictions
and sentences, with the exception of count 9. This appeal
is with
special leave of this court.
Background
Facts
[4]
It is common cause that late on a Sunday night and early on a Monday
morning, in September 1998, a group of young men rampaged
through the
Umthambeka Section of Tembisa, in the district of Kempton Park. They
forced entry into several shacks and once
inside, they assaulted,
robbed and raped the occupants. Ms D. M. (Ms M.) and her two younger
sisters, Ms N. (Ms N.) and Ms M. N.
occupied one of the several
households invaded. Subsequently, seven people, including the
appellant, were arrested. He was well
known to Ms M. as the two of
them attended high school together. They were both in the same grade
but in different classrooms.
She knew the appellant as Pat.
[5]
In the trial court, Ms M. testified that on the night in question,
while she and her sisters were sleeping, the appellant and
a group of
young men who were unknown to her, forced entry into their shack. The
intruders demanded money but they were told that
there was none. Ms
M. and her younger sister, Ms N., were ordered to cover their heads
with blankets. A person, referred to in
the trial as ‘the first
intruder,’ demanded to have sexual intercourse with Ms M.. She
refused. A second person, referred
to as the ‘second intruder’,
assisted the first intruder to assault her and overcome her
resistance. Her underwear
was torn off. The first intruder then raped
her. When he had finished he went outside. Ms M. went to assist her
younger sister,
who was also being raped by another co-accused.
[6]
At some stage, Ms M. saw the appellant lying next to her on the bed.
She called him by his name and asked him ‘why are
they doing
such a thing’. Instead of saying anything in response, the
appellant laughed. At some stage, and it is not clear
from her
evidence whether it was before or after she spoke to the appellant,
another co-accused entered the shack and raped her.
Two months later,
an identification parade was held. Ms M. identified the
appellant positively and she did the same in the
dock during the
trial. Her identification of the appellant was corroborated by Mr T.
E. M., an occupant of one of the shacks that
was also invaded. He saw
the appellant in the vicinity of his shack and Ms M.’s shack.
Ms M. was unable to identify any of
the appellant’s associates
on the night of the incident. During cross examination, Ms M. said
that she could not identify
who had raped her or Ms N.. In answer to
a question asked by the trial judge, she said that she had not been
raped by the appellant
and she did not know who had raped her sister.
The
Trial Court
[7]
In the trial court, Willis J, despite no evidence to this effect
having been led, found that the accused must have conspired
together
to commit the crimes that were committed during the rampage. He also
concluded on the basis of inferences that he drew
from circumstantial
evidence that: first, the appellant was the second intruder who
assisted the first intruder to assault and
subdue Ms M. in order for
her to be raped; and secondly, he associated himself with the second
rape of Ms M.. He was convicted
on this basis of the rapes of both Ms
M. and Ms N.. In addition, he was convicted on the basis of the
finding as to a prior agreement
of all the offences that were
committed during the rampage.
The
Full Court
[8]
On appeal to the full court, the majority (Mokgoatlheng and Khumalo
JJ) upheld the view of the trial court that Ms M. was an
excellent
witness and it justifiably accepted her evidence as reliable in
identifying the appellant on the night of the incident,
immediately
after she was raped by the first intruder. On that basis it concluded
that the appellant was the second intruder that
assisted the first
intruder in assaulting and overpowering Ms M. when she was first
raped. The full court, like the trial court,
concluded that the
appellant associated himself with the second rape of Ms M.. It
however held him liable as an accomplice in respect
of each of the
eight common law rapes perpetrated on the eight complainants during
the course of the rampage. It dismissed his
appeal against the
remainder of his convictions and sentences.
[9]
In his minority judgement, Dama AJ disagreed with the majority’s
conclusion and held in respect of the rape of Ms M. and
her sister
that:
‘
[In
this case] there is no minute evidence which was proved by the State
that the appellant assisted others in any form during the
commission
of the rape, save that he was present at the scene and, therefore
appellant must escape liability in this regard.’
He
found that there was no evidence to link the appellant to the
offences committed at places other than Ms M.’s shack. He
concluded that the evidence established the appellant’s guilt
in respect of count 9 only – the robbery with aggravating
circumstances committed in Ms M.’s shack. He would have upheld
the appeal in respect of all the convictions on all counts,
other
than count 9.
In
this Court
[10]
Before us, counsel for the appellant contended that Ms M.’ s
evidence as to when she saw the appellant in her shack was
unclear.
He submitted that during her testimony, Ms M. replied ‘I do not
remember any more as to whether it was before or
after I had been
raped’. He further submitted that the objective facts showed
that there were more than three intruders,
whereas Ms N. testified
that there were five young men and Ms M. could not remember. Ms M.
was also adamant that she and her younger
sister were not raped by
the same intruder. For that reason, counsel for the appellant
contended that the full court misdirected
itself for convicting the
appellant as an accomplice to the rape of Ms M. and her younger
sister. He also argued that the appellant’s
convictions in
respect of all of the other counts, except for count 9, had not been
proved beyond a reasonable doubt by the State.
The
law and the facts: accomplice to rape
[12]
In
Minister
of Justice and Constitutional Development & another v Masingili &
others
[1]
the Constitutional Court
grappled with the meaning of the term ‘accomplice’.
Having considered the facts before it,
it stated the following:
‘
An
accomplice is someone whose actions do not satisfy all the
requirements for criminal liability in the definition of an offence,
but who nonetheless furthers the commission of a crime by someone
else who does comply with all the requirements (the perpetrator).The
intent required for accomplice liability is to further the specific
crime committed by the perpetrator.’
[13]
The learned author
C
R Snyman
Criminal
Law
6
ed (2014) at 266 describes the position as follows:
‘
Accomplice
liability may be defined as follows:
1.
A person is guilty of a crime as an accomplice if, although he does
not satisfy all the requirements for liability contained
in the
definition of the crime and although the conduct required for a
conviction is not imputed to him by virtue of the principles
relating
to common purpose, he unlawfully and intentionally engages in conduct
whereby he furthers the commission of a crime by
somebody else.
2.
The word “furthers” in rule 1 above includes any conduct
whereby a person facilitates, assists or encourages the
commission of
a crime, gives advice concerning its commission, orders its
commission or makes it possible for another to commit
it.’
[14]
Against this background, it is necessary to examine Ms M.’s
evidence. In my view, the clear identification of the appellant
by Ms
M. could not be refuted as she knew him well prior to the incident.
She also had sufficient opportunity within the confines
of a
single-room shack to positively identify him as he came into the
shack with his co-accused and when he was lying on the bed
after the
first rape had occurred.
[15]
Reverting to the basis on which the full court confirmed the
convictions, and applying same to these facts, I have to agree
with
Dama AJ on his reasons mentioned above in para [9]. To convict the
appellant on the basis of his mere presence is to subvert
the
principles of participation and liability as an accomplice in our
criminal law. For criminal liability as an accomplice to
be
established, there must have been some form of conduct on the part of
the appellant that facilitated or assisted or encouraged
the
commission of the rape of Ms M. during the two separate incidents in
her shack. Ms M.’s evidence does not disclose
any
assistance rendered by the appellants in the commission of the rapes;
and the conduct does not amount to facilitation, assistance
or
encouragement. That, in my view, should have been the end of the
matter. The fact that the appellant laughed after being asked
why
they were ‘doing such a thing’ may be conduct that showed
his approval of what was happening, but that is not enough
to
establish his liability as an accomplice. In
S
v Nooroordien & andere
,
[2]
in
which two persons had been present when a murder had been committed,
the court stated:
‘
Alles
wat gebeur het mag, en het in alle waarskynlikheid hulle goedkeuring
weggedra. Dit is egter nie genoeg nie…’
[3]
[16]
Before us, the State relied on
S
v Kock
[4]
but
also conceded that the facts of that case are distinguishable from
the present appeal. In
Kock
the appellant was charged with rape together with his co-accused.
During the rape of the complainant by the appellant’s
co-accused, the appellant stood guard with a panga while accused 1
was raping the complainant. In the appeal before us, the
least
that can be said about the appellant’s conduct of laughing and
doing nothing to prevent the rapes, is that it was morally
reprehensible. That, and his mere presence at the scene, is not
enough to justify a conviction as an accomplice to rape.
[17]
As no
actus
reus
has been established by the evidence, the appellant’s
convictions as an accomplice in respect of the rape of Ms M. cannot
succeed. For the reasons set out immediately below, the appellant’s
conviction as an accomplice to the rape of Ms N. must
also be set
aside.
Common
purpose on the remaining offences where the appellant was not
present.
[18]
In respect of the remaining charges of being an accomplice to rape,
including the rape of Ms N., housebreaking, with intent
to rob and
robbery with aggravating circumstances, common assault and assault
with intent to do grievous bodily harm, housebreaking
with intent to
rob and attempted robbery with aggravating circumstances and
malicious injury to property, which were committed
at other
households, the trial court found that a prior agreement must have
been reached by all those identified at any of the
sites at which
crimes had been committed. It was on this basis that the appellant
was convicted even though he was only identified
at Ms M.’s
shack. It reached this conclusion by inferential reasoning: because
so many offences were committed by so many
people at so many places,
those who were identified must have agreed beforehand to the rampage
and everything that it entailed.
This is not, however, the only
reasonable inference to be drawn and certainly in respect of the
appellant, it cannot be said that
because he was seen at Ms M.’s
shack he was party to a prior agreement and was present at all of the
other scenes.
[19]
In the absence of any prior agreement, the State had to prove the
following requirements of the doctrine of common purpose
as set out
in
S
v Mgedezi
[5]
in
order for the appellant to be held criminally accountable. Firstly,
the appellant was present at the scene of violence. Secondly,
he was
aware of the perpetration of such offences on the complainants in the
other households. Thirdly, he had intended to make
common cause with
those who were actually perpetrating the offences. Fourthly, he
manifested his sharing of a common purpose with
the perpetrators of
the offences by himself performing some act of association with the
conduct of the others. Fifthly, he had
the requisite mens rea i.e he
intended to assault, break in and rob or must have foreseen the
possibility of the commission of
these offences and performed his own
act of association with reckless disregard as to whether or not such
eventuality ensued.
[20]
In my view, there was no such evidence to prove that the appellant
was present at the scenes of violence where the rapes, assaults,
housebreakings, robberies and other offences were being committed
other than at the household of Ms M. and Ms N. . Nor was it proven
that he had the requisite mens rea, was aware of the violence taking
place in the other households and had manifested his sharing
of a
common purpose with the perpetrators of the rapes, assaults,
housebreakings, robberies and other offences.
The
Constitutional Court in
S
v Molimi
[6]
put
it aptly as follows:
‘
It
is a cardinal principle of our criminal law that when the State tries
a person for allegedly committing an offence, it is required,
where
the incidence of proof is not altered by statute .., to prove the
guilt of the accused beyond reasonable doubt. That standard
of proof,
“universally required in civilised systems of criminal
justice,” is a core component of the fundamental fair
trial
right that every person enjoys under s 35(3) of the Constitution.
In
S
v
Zuma
and Others
,
this Court,
per
Kentridge AJ, held that it is always for the prosecution to prove the
guilt of the accused person, and that the proof must be beyond
reasonable doubt. The standard, borrowing the words used by Plasket J
in
S
v T
,
“is not part of a charter for criminals and neither is it a
mere technicality.” When the State fails to discharge
the onus
at the end of the case against the accused, the latter is entitled to
an acquittal.
‘
Thus
the appellant ought not to have been convicted of all the other
charges except the charge in respect of count 9.The concession
in
respect of count 9 was made correctly so. In my view, therefore, the
trial court and the full court erred in convicting the
appellant of
any of the charges with the exception of count 9.
[21]
The events of that night were aptly described by the full court as a
‘reign of terror, an orgy of violence and pillage
which
included a paralysis of fear, morbidity, hopelessness and a psychosis
of defencelessness’ in the complainants.’
This court is
sensitive and aware of these violent crimes perpetrated against women
and children. But there is a more onerous duty
on courts to ensure
that there is an adherence to the rule of law to the extent envisaged
by our Constitution where everyone is
treated equally before the law.
To use the words of Plasket J in
S
v T
:
[7]
‘
The
State is required, when it tries a person for allegedly committing an
offence, to prove the guilt of the accused beyond reasonable
doubt.
This high standard of proof – universally required in civilised
systems of criminal justice – is a core component
of the
fundamental right that every person enjoys under the Constitution,
and under the common law prior to 1994, to a fair trial.
It is not a
part of a charter for criminals and neither is it a mere
technicality. When a court finds that the guilt of an accused
has not
been proved beyond reasonable doubt, that accused is entitled to an
acquittal even if there may suspicions that he or she
was, indeed,
the perpetrator of the crime in question. That is an inevitable
consequence of living in a society in which freedom
and the dignity
of the individual are properly protected and are respected. The
inverse – convictions based on suspicion
or speculation –
is the hallmark of tyrannical systems of law. South Africans have
bitter experience of such a system and
where it leads to’.
[20]
In the result the following order is granted:
(a)
The appeal succeeds in respect of all counts except count 9.
(b)
The order of the court a quo is set aside and replaced with the
following order.
‘
(i)
The appellant’s conviction and sentence in respect of count 9
are confirmed.
(ii)
The appellant’s convictions and sentences in respect of the
remaining counts are set aside.
_________________
BC Mocumie
Judge
of Appeal
APPEARANCES:
For
Appellant:
EA Guarneri
Instructed
by:
Justice Centre, Johannesburg
Justice
Centre, Bloemfontein
For
Respondent:
KT Ngubane
Instructed
by:
The Director of Public Prosecutions, Johannesburg
The
Director of Public Prosecutions, Bloemfontein
[1]
Minister of
Justice and Constitutional Development & another v Masingili &
others
[2013] ZACC 41
;
2014 (1) SACR 437
(CC) para 21; See also
R
v Jackelson
1920
AD 486
at 491
.
For interest, i
n
the United Kingdom, the doctrine is more commonly known as ‘joint
criminal enterprise’. In
Jogee
and Ruddock v The Queen
(Jamaica) [2016] UKSC the Supreme Court stated:
‘
(1)
D2 must assist or encourage D1 in the commission of offence X;
(2)
D2 must know any necessary facts which gives D1’s conduct or
intended conduct its criminal character; and
(3)
With that knowledge,D2 must intend to assist or encourage D1 to
commit offence X, with the requisite mental fault element
of that
offence.’
[2]
S v Nooroodien
& andere
1998 (2) SACR 510
(NC); See
Snyman
above.
[3]
At 524f-g.
Loosely translated to English it means ‘all that happened
seems to have carried their approval. That is however
not enough.’
[4]
S v Kock en ‘n
ander
1998
(1) SA 37 (A)
[5]
S v Mgedezi &
others
[1988]
ZASCA 135
;
1988 (1) SA 687
(A) at 7051I-706C.
[6]
S
v Molimi
[2008]
ZACC 2
; 2008 (2) SACR (CC) para 50.
[7]
S v T
2005 (2) SACR 318
(E) at para 37.