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[2017] ZACC 36
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Makhubela v S, Matjeke v S (CCT216/15, CCT221/16) [2017] ZACC 36; 2017 (2) SACR 665 (CC); 2017 (12) BCLR 1510 (CC) (29 September 2017)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Cases CCT
216/15 and 221/16
CCT 216/15
In the matter between:
GEORGE SIPHO
MAKHUBELA
Applicant
and
THE
STATE
Respondent
CCT
221/16
In the matter
between:
THABO ELEKIA
MATJEKE
Applicant
and
THE
STATE
Respondent
Neutral
citation:
Makhubela
v The State; Matjeke v The State
[2017]
ZACC 36
Coram:
Mogoeng CJ, Nkabinde
ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ
and Zondo J
Judgment:
Mhlantla J (unanimous)
Decided on:
29 September 2017
Summary:
Extra-curial admissions of an accused
are inadmissible against a co-accused — sufficient independent
evidence to warrant conviction
— conviction and sentence of the
murder and robbery counts confirmed
ORDER
On appeal from the
Full Court of the
High Court of South Africa, North West
Division,
Mahikeng:
The following order is
made:
1.
Condonation is granted.
2.
Leave to appeal is granted.
3.
The appeals are partially upheld.
4.
The order of the High Court of South Africa, North West Division,
Mahikeng
is set aside only to the extent
set out below:
“
(a)
The appeal by the applicants against their convictions on counts 4
and 5 is upheld.
(b)
Their convictions and sentences on these counts are set aside.”
JUDGMENT
MHLANTLA J (Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mojapelo AJ, Pretorius
AJ and Zondo J concurring):
Introduction
[1]
The two applicants, Mr Thabo Matjeke
(Matjeke) and Mr George Makhubela (Makhubela) seek leave to appeal
against an order of the
High Court of South Africa, North West
Division,
Mahikeng
(Full
Court). The Full Court dismissed their appeal against their
convictions and sentences. The applicants, who were
accused
number one and three respectively in the trial court, and their five
co accused,
[1]
were convicted of the murder of a police officer, robbery with
aggravating circumstances and unlawful possession of firearms and
ammunition. These convictions were based on the doctrine of
common purpose. They were sentenced to life imprisonment
for
murder, 15 years’ imprisonment for robbery and six years’
imprisonment for possession of firearms and ammunition.
[2]
The issues for determination before this
Court are whether leave to appeal should be granted and whether the
convictions of the
applicants based on the doctrine of common purpose
can be sustained.
[2]
Although the two applications were lodged
in this Court on different occasions, the circumstances of the
applicants’ cases
relate to the same incident and they were
tried together in the trial court. The same sentences were
imposed and the grounds
of appeal are similar. Therefore, it is
appropriate to prepare one judgment dealing with both applications.
It is necessary
at this stage to outline the background.
Factual background
[3]
On 3
August
2002,
Warrant Officer Dingaan Makuna (deceased) arrived at his home with
his service pistol tucked in his waist. He was subsequently
shot three times by intruders in the presence of his daughter.
It was
alleged that the applicants were part of a group of men who had shot
the deceased and planned to steal his bakkie.
The deceased was taken to hospital
where he died later that night. His pistol was never found.
[4]
Following this incident, Messrs Matjeke and
Makhubela and their five co accused were arrested and charged
with murder, robbery
with aggravating circumstances and unlawful
possession of firearms and ammunition. After their arrest, some
of the accused
made extra-curial statements to the investigating
officer and to the magistrate. Matjeke and another accused also
pointed
out the house of the deceased and the tavern where they had
gathered before going to the deceased’s house.
Litigation history
Trial Court
[5]
At the commencement of the trial, all the
accused pleaded not guilty to the charges. During the trial,
the State sought to
rely on the extra-curial statements to prove the
guilt of the accused. The accused challenged the admissibility
of these
statements and alleged that the statements were not made
freely and voluntarily. They alleged that the police had
assaulted
them, and also promised to give them money and release them
on bail if they made the statements. Accordingly, they averred
that the statements were made under duress and were thus
inadmissible.
[6]
As a result, a trial-within-a-trial was
held to determine the admissibility of the extra-curial statements.
The State adduced
evidence relating to the manner in which these
statements were taken and whether certain statements had been made
freely and voluntarily
or whether the accused were under duress by
virtue of assaults and promised money by the investigating officer.
At the conclusion
of the trial-within-a-trial, the trial court relied
on
Ndhlovu
,
[3]
where the Supreme Court of Appeal held that such statements were
admissible in terms of the section 3(1)(c) of the Law of
Evidence Amendment Act (Evidence Amendment Act)
[4]
to uphold the probative value of the previously admitted statements.
Section 3(1)(c) of the Evidence Amendment Act allows
a
court to exercise its discretion in admitting hearsay evidence when
it deems it to be in the interests of justice to do so, taking
into
account various factors.
[5]
The trial court concluded that the extra-curial statements by
the accused and the pointing out of the deceased’s home
by
Matjeke and another co-accused were admissible. These
statements then became part of the evidential material before the
trial court. The details of the statement of each applicant as
well as his testimony are set out below.
Matjeke
[7]
In his extra-curial statement, Matjeke
stated that on the day of the incident, he, together with Makhubela,
Mhlongo, Molaudzi and
Moyo, had travelled from Soshanguve to
Mothotlung after being requested by Khanye to visit him. They
travelled in a Toyota
Cressida motor vehicle owned by Mhlongo.
Molaudzi and Moyo carried firearms. After arriving at
Tshipa’s tavern
in Mothutlung, Khanye told them about a person
who wanted them to steal a bakkie and that he had spotted a vehicle
that could be
stolen. At some stage, they drove past the
deceased’s house, and, at Moyo’s suggestion, stopped
further down
that street. Moyo, who was armed, walked to the
house with Makhubela, Molaudzi, Khanye and Mphume (the accused who
disappeared).
Matjeke remained behind in the vehicle. After
two shots were fired, his co-accused ran back to the car.
[6]
[8]
Matjeke also pointed out the house of the
deceased to the police. He further said that when the other men
came back to the
vehicle from the deceased’s house, Molaudzi
had a third firearm.
[7]
[9]
Matjeke testified on two different
occasions. During his first oral testimony, he stated that
towards the end of July 2002,
he, together with Makhubela and
Mhlongo, had gone to Tshipa’s tavern in Mothotlung where they
found Khanye with three men.
They all attended a party until
03h00. At some stage Matjeke, together with Makhubela and
Mhlongo went to Stinkwater,
while Khanye and his three companions
went to Mothotlung. He testified that he had never been to
Mothotlung and furthermore,
that he had not been at the scene of the
crime during the incident.
[8]
He thereafter closed his case.
[10]
Later on during the proceedings, Matjeke
applied to re-open his case so that he could testify again in order
to “tell the
truth”. The trial court upheld the
application. In his second testimony, Matjeke changed his
earlier version.
He confirmed the contents of his extra-curial
statement. He further testified that after he heard two shots
had been
fired, the five men fled from the scene and returned to the
vehicle. Mhlongo, on the instruction of Moyo, had driven very
fast away from the scene. Matjeke further testified that he had
enquired about the incident from Mhlongo, who had told him
that they
were “just doing some job”. He heard Moyo
requesting Khanye to produce the firearm so that he could
inspect it.
He also heard Mphume confronting Moyo for shooting the
deceased. Moyo thereupon responded that the deceased
also had a
firearm and would have shot them. Matjeke testified that he had
been instructed by Mhlongo and Khanye to fabricate
his version.
Thus, his original testimony was false.
[9]
[11]
The extra-curial statements of Khanye and
Makhubela also implicated Matjeke. Khanye stated that in August
2002, Matjeke and
Mhlongo had sought his assistance to “acquire”
an old Isuzu bakkie. They gave him their telephone numbers to
contact them if he should come across a vehicle that they could
hijack. Some days later, Khanye saw a bakkie in a yard in
Mothotlung and he telephoned them. Matjeke, Mhlongo and
Makhubela met Khanye at Tshipa’s tavern. Matjeke and
Mhlongo had firearms. They travelled in Mhlongo’s vehicle
and Khanye led them to the place where he had seen the bakkie.
However, the bakkie was no longer there. Thereafter,
Khanye was dropped off at his home and he did not know what happened
thereafter.
[10]
Makhubela
[12]
Makhubela made an exculpatory statement to
an investigating officer. He stated that on the day of the
incident, he travelled
with Matjeke and Mhlongo to Mothotlung, where
they found Khanye with three unknown men. They all travelled in
a Toyota Cressida
driven by Mhlongo. Somewhere along the road,
the driver, Mhlongo, stopped the car and Matjeke, Mhlongo and Kanye
alighted
from the vehicle and went away. The three strangers
stood next to the car while he remained in the vehicle and sat in the
driver’s seat. After about ten minutes, his co-accused
came back running. They got into the car and drove off
at high
speed.
[13]
In his oral evidence, Makhubela steadfastly
denied having been involved in the commission of these offences.
He admitted that
on the day of the incident he had been with the
other accused and that they had proceeded to Mothotlung. He
testified that,
when the car stopped, some of the accused alighted.
As they were leaving, he noticed that they had firearms in
their possession.
These persons proceeded towards a certain
house. He also got out of the vehicle to relieve himself whilst
waiting for
them. He then heard two gunshots. Makhubela
stated that he did not make any enquiry about the shooting because he
was
scared. He further testified that he had heard Khanye and
Moyo stating that they needed a vehicle to go to Pietersburg. That
was the first time he had heard of any discussion about the
acquisition of a vehicle.
[14]
Makhubela contended that his statement was
exculpatory and not a confession. He admitted being in the
vehicle with the co-accused
but had not participated in the
commission of the offences. He had consumed alcohol and merely
alighted from the vehicle
to relieve himself. He conceded that
he had lied during his bail proceedings because his co-accused had
threatened him. According
to him, there was no direct evidence
linking him to the planning and commission of the offences.
Furthermore, there was no
evidence that proved that he had
entered the premises of the deceased or known that the deceased had
been shot.
[15]
As already indicated, these statements were
admitted against their makers and their co-accused. The trial
court held that
all the accused had a common purpose to commit the
robbery in the premises of the deceased. When the accused went
to Mothotlung
and saw the other accused alighting from the vehicle,
they were aware of the fact that the other accused were armed and
that, if
anything did not go according to plan, the firearms would be
used. The trial court then concluded that, as far as the murder
charge was concerned, they were all liable for the commission of the
offence of murder. It further concluded that all the
accused
were guilty of unlawful possession of firearms and possession of
ammunition. Even though some of the accused were not found
in
possession of a firearm, the Court reasoned that, because firearms
were possessed on their behalf, they could still be found
guilty.
The trial court accordingly convicted them on these charges.
[16]
Regarding sentence, the trial court
concluded that the accused were not youthful offenders, the crime had
been pre meditated
and the victim had been shot several times.
It concluded that there were no substantial or compelling
circumstances that
would justify the imposition of a lesser sentence.
It thus imposed the prescribed minimum sentences for murder and
robbery
with aggravating circumstances.
The
sentences imposed for attempted robbery, unlawful possession of
firearms and possession of ammunition were ordered to run
concurrently
with the life sentences imposed for murder.
Full Court
[17]
An appeal against the convictions and
sentences came before a Full Court. The issue on appeal related
to the admissibility
of the extra-curial statements. The
Full Court concluded that the statements were not hearsay
evidence but were evidence
envisaged in section 3(1)(b) of the
Evidence Amendment Act and as a result became “automatically
admissible”,
because the accused confirmed portions of the
statements in their oral testimony. The Full Court noted that
the evidence
of an accused who testified against a co-accused should
be treated on the same basis as that of an accomplice and with
caution.
It did not accept the explanation of the accused that
they were not involved in the plan to rob especially since they were
in the company of the perpetrators. Regarding sentence, the
Full Court held that the
trial court
exercised its discretion properly and concluded that there was no
reason to justify an interference with the sentence
imposed. In
the result, the Full Court dismissed the appeals against convictions
and sentences.
Supreme Court of
Appeal
[18]
The applicants’ applications for
leave to appeal were dismissed by the Supreme Court of Appeal.
In this Court
Condonation
[19]
Matjeke’s petition to the Supreme
Court of Appeal was refused on 3
August
2013,
yet he lodged his application to this Court on 19
September
2016.
The application is thus out of time by three years. In
his explanation for the delay, he states that he has been
in prison
since 2002 and has no legal knowledge. Due to financial
constraints, he cannot afford to engage a legal representative.
A fellow prisoner, who was studying law, assisted him in drafting and
submitting his application.
[20]
Makhubela’s petition to the Supreme
Court of Appeal was dismissed on 6
August
2013
whilst his application to this Court was lodged on 11
November
2015.
His application, which should have been lodged in this Court by
28
August
2013,
is late by more than two years. He explains that he has been
incarcerated since 2002 and has no legal knowledge. He
had
previously approached the Legal Aid Board of South Africa for
assistance and legal representation but never received a
response.
Eventually, a fellow inmate, who had obtained an LLB degree
whilst in prison, assisted him to prepare his application.
[21]
An applicant seeking condonation for the
late filing of his or her application has to provide a full
explanation for the non-compliance
with the Court’s Rules.
This includes a reasonable explanation for the delay before this
Court can grant condonation.
[11]
On the face of it, the explanation for the delay provided by both
applicants is not satisfactory. However, it must
be borne in
mind that they are sentenced prisoners and that it is not easy for
them to access the services of a legal representative.
Makhubela even attempted to seek assistance from the Legal Aid Board
but without success.
[22]
Another factor to be considered is whether
it will be in the interests of justice to grant condonation.
[12]
Notwithstanding the paucity of the explanation for the delay, I am of
the view that it will be in the interests of justice
to grant
condonation. This is so because, in
Mhlongo
,
[13]
Matjeke and Makhubela’s co-accused were granted condonation by
this Court based on similar reasons. Finally, the State
will
not suffer any prejudice if condonation is granted. Condonation is
therefore granted.
Leave to appeal
[23]
This Court, in
Mhlongo
,
[14]
granted leave to appeal to two people who had been convicted of
murder in respect of the same incident that is the subject of the
present applications.
[15]
In
Molaudzi
,
this Court granted leave to a third accused convicted in the
trial,
[16]
and this Court granted leave to a fourth accused in
Khanye
.
[17]
The four appeals were upheld and the accused in question were
released from prison. Matjeke and Makhubela are their
co-accused. Therefore, it is in the interests of justice that
leave to appeal be granted and that this Court entertain their
cases.
[24]
In addition, this matter concerns the
proper application of the doctrine of common purpose. The
doctrine of common purpose
involves the attribution of criminal
liability to a person who undertakes jointly with another person or
persons to commit a crime,
even though only one of the parties to the
undertaking may have committed the criminal conduct itself.
[18]
Its effect is therefore far-reaching, and implicates the
constitutional rights of freedom of the person and the right to
a
fair trial, including the right to be presumed innocent.
[19]
The appeal
[25]
These applications were considered and
decided without oral argument. The parties were directed to
deliver written submissions.
Makhubela was not legally
represented. This Court therefore requested the Johannesburg Society
of Advocates to nominate counsel
who would assist him, consider the
record of proceedings and thereafter file written submissions on his
behalf. Advocate
Lawrence Hodes SC of the Johannesburg Bar
kindly agreed to assist. This Court is grateful to Advocate
Hodes for his assistance
and for the Bar’s continued provision
of pro bono assistance in deserving cases. The State opposed
the application
and filed its written submissions.
Submissions
Makhubela
[26]
Makhubela challenges the admissibility of
the statements that were used as evidence against him. He
places reliance on
Mhlongo
.
He submits that, if the extra curial admissions of his
co-accused are not utilised to implicate him, then the only
remaining
evidence is his own oral testimony and his exculpatory pre-trial
statement. There, he stated that he had played
no role in the
planning and commission of the offences. He submits that his
convictions and sentences ought to be set aside.
[27]
On the other hand, the State submits that
other evidence exists that implicates Makhubela notwithstanding his
exculpating assertions:
the fact that he was in the company of the
robbers from the outset, travelled with them to the scene and was
aware of the firearms
in the possession of the other accused.
The State therefore submits that Makhubela was correctly convicted.
Matjeke
[28]
Matjeke did not rely on
Mhlongo
.
However, he still challenged the admissibility of the statements made
by him and the pointing out. His circumstances
are similar to
Makhubela’s situation. Therefore, the principle
enunciated in
Mhlongo
will be considered when evaluating his case. He submits that
his statements and the pointing out were not made freely and
voluntarily. Furthermore, he submits that the State did not
prove the truthfulness of the statements and the pointing out.
He further disputes the allegation that he spoke to the investigating
officer with the intention of making a confession.
[29]
It is apposite at this stage to provide a
brief discussion of this Court’s decision in
Mhlongo
.
That case concerned two co-accused of Matjeke and Makhubela.
They were Boswell Mhlongo and Alfred Nkosi.
Extra-curial statements made by the accused in the present case had
incriminated Mhlongo and Nkosi who argued that the admission
of
extra-curial statements by an accused against a co-accused violated
the Constitution. This Court confirmed the common
law position
that admissions tendered by an accused against his or her co-accused
are not admissible.
[20]
The Court went on to state that section 219A
of the Criminal Procedure Act expressly provides that an admission
can be admitted
only against its maker and is silent regarding other
persons.
[21]
Therefore, this Court held that the section did
not contemplate extra-curial admissions being tendered as evidence
against another
person.
[22]
The Court held that extra-curial confessions and
admissions by an accused are inadmissible against a co accused
and therefore,
the admissions by the applicant’s co-accused
cannot be used against him.
[30]
This Court restored the common law position
that extra-curial statements made by an accused are not admissible
against a co-accused.
It also said that the only exception at
common law was—
“if
the statement constitutes an ‘executive statement’ by an
accused, it may be admissible against a co-accused
if it was made in
furtherance of a common purpose or conspiracy. There must be
other evidence (
aliunde
)
to establish the existence of a common purpose before the statements
can be taken into account.”
[23]
[31]
In
Mhlongo
,
this Court found that the State conceded that the extra-curial
statements made by the accused were not “executive”
[24]
in nature and would therefore not fall under the exception.
[25]
[32]
When applying the principles enunciated in
Mhlongo
to
the facts in these two applications, it follows that this Court has
to determine these applications without any reference to
the
statements by Matjeke and Makhubela’s co-accused where they
implicated them. In doing so, it must have regard to
the
circumstances surrounding the commission of the offences, and Matjeke
and Makhubela’s statements as well as their oral
evidence and
determine whether there is sufficient evidence outside the
extra-curial statements made by their co-accused to warrant
their
convictions in accordance with the doctrine of common purpose.
Statements by the
applicants
Matjeke
[33]
Matjeke, in his statement, placed himself
at the scene of the crime. He stated that he was with his
co-accused who were carrying
weapons. They had been requested
to steal a bakkie and drove near the deceased’s house.
Matjeke’s co accused
alighted from the vehicle, and went
inside the deceased’s house. They later came back
running, carrying an additional
firearm. Matjeke confirmed all
of this under oath during the trial.
Makhubela
[34]
Makhubela also placed himself at the scene
of the crime with his co-accused, who according to him, had firearms
in their possession.
His co-accused went inside the deceased’s
house and he remained in the car. He heard shots being fired.
His co accused
returned and started arguing about why the other
had shot the deceased and the response was that the deceased had a
firearm and
would have retaliated. Thereafter they left the
scene together.
Application of the
doctrine of common purpose
[35]
The operation of the doctrine of common
purpose does not require each participant to know or foresee in
detail the exact manner
in which the unlawful act and consequence
will occur.
[26]
The doctrine of common purpose in our law is clear.
[36]
In
Mgedezi
,
the Supreme Court of Appeal stated:
“
In
the first place, he must have been present at the scene where the
violence was being committed. Secondly, he must have
been aware
of the assault on the inmates. Thirdly, he must have intended
to have common cause with those who were actually
perpetrating the
assault. Fourthly, he must have manifested his sharing of a
common purpose with the perpetrators of the
assault by himself
performing some act of association with the conduct of others.
Fifthly, he must have had the requisite
mens
rea
.”
[27]
[37]
In
Thebus
,
this Court reiterated the principle of common purpose and explained
what the “requisite
mens rea
”
entails if the prosecution relies on this doctrine. The Court
stated:
“
If
the prosecution relies on common purpose, it must prove beyond a
reasonable doubt that each accused had the requisite
mens
rea
concerning the unlawful outcome at
the time the offence was committed. That means that he or she
must have intended that
criminal result or must have foreseen the
possibility of the criminal result ensuing and nonetheless actively
associated himself
or herself reckless as to whether the result was
to ensue.”
[28]
[38]
Finally, in
Dewnath
it was held:
“
The
most critical requirement of active association is to curb too wide a
liability. Current jurisprudence, premised on a proper
application
of
S v Mgedezi
,
makes it clear that (i) there must be a close proximity in fact
between the conduct considered to be active association and the
result; and (ii) such active association must be significant and not
a limited participation removed from the actual execution
of the
crime.”
[29]
[39]
In this matter, Matjeke and Makhubela admit
to being part of the group but deny any involvement in the commission
of the offences
and on that basis submit that they could not be
associated with the murder on the evening of 3
August
2002.
In my view, this submission is without merit. This conclusion
is supported by Makhubela’s conduct and what
transpired once
they left Matjeke’s home. On the day of the
incident, Matjeke spent the afternoon with Makhubela.
They also
left with their co-accused in the same car and travelled together to
Mothotlung. They spent time at the same
tavern upon their
arrival. Finally, they placed themselves at the scene of the
crime with their co-accused who, they knew,
had firearms.
Therefore, the fact that Matjeke and Makhubela were at the scene of
the crime was no chance event and suggests
that it wascoordinated.
[40]
Moreover, there is no evidence that Matjeke
and Makhubela were at any stage coerced to travel and remain with the
group. If
they had not known about the plan or had not intended
to be involved in any manner, then they should have enquired from
their co-accused
what their intentions were when they parked the
vehicle at a distance from the scene of the fatal shooting. Or,
at least,
they should have raised questions once they became aware
that their co-accused had been carrying firearms and when the armed
men
had alighted and proceeded to the house. In that case, they
should have distanced themselves from their co-accused.
They
did not do so but remained at the scene with the other accused
waiting for the armed robbers to return. After hearing
the
gunshots, they did not question the actions of their co accused,
nor did they flee or disassociate themselves from them
in any way.
Upon their return, they did not ask why the vehicle had to be driven
at a very high speed from the scene or where
the extra firearm had
come from. They claim they merely boarded the vehicle and
waited for their co-accused to return. Instead,
they cooperated
with their co-accused. The fact that they were not under duress
and had every chance to object or leave suggests
that they had an
understanding with their co-accused to participate in criminal
activity. So it is reasonable to infer that
Matjeke and
Makhubela, far from being caught up unawares in illicit conduct, had
an intention to commit a crime with their co-accused.
[41]
Having regard to the facts, it is evident
that Matjeke and Makhubela’s cases are distinguishable from
those of their co-accused,
that is, Mhlongo, Nkosi, Molaudzi, Moyo
and Khanye, whose appeals this Court has upheld. Unlike in
those cases, the State
was able to provide sufficient evidence
linking Matjeke and Makhubela to the commission of the crimes.
This consisted principally
in their own admission, under oath during
the trial, that they were knowingly at the scene of the murder, plus
the trial court’s
rightful rejection of their implausible
self-exculpations. Mhlongo, Nkosi, Molaudzi, Moyo and Khanye
were all convicted on
the sole strength of, first, their proximity to
the crime scene; and, second, the incriminating references to them in
their co-accused’s
extra-curial statements.
[42]
Matjeke and Makhubela’s position here
is different. Their own pre-trial statements implicated them
closely in the events.
Those statements the trial court ruled
admissible. Their contention that the only evidence against
them is inadmissible is
without merit. There is sufficient
evidence against them to show that they had participated in the
robbery under a common
purpose with those who actually committed the
robbery.
[43]
The evidence shows that the requirements
for a conviction on the basis of common purpose set out in the
Supreme Court of Appeal’s
judgment in
Mgedezi
,
quoted above, have been met in relation to the charge of armed
robbery.
[30]
It is clear that the applicants were present at the scene of the
crime and were aware of the armed robbery. They, therefore,
made common cause with those committing the armed robbery. The
applicants manifested their sharing of a common purpose with
the
perpetrators of the armed robbery by performing an act of association
with the conduct of the others in the form of travelling
with them to
and away from the scene of the crime, and they had the requisite
mens
rea
to commit the armed robbery.
It follows that their convictions in respect of the robbery charge
must stand.
[44]
The same applies in the case of the murder
charge. On the issue of
mens rea
in the case of the murder charge, the requirement that they must have
had the requisite
mens rea
as
set out in
Thebus
above has been met.
[31]
The applicants may not have intended the criminal
result of murder, but they must have “foreseen the possibility
of the criminal
result [of murder] ensuing”.
[32]
This is by virtue of the fact that the other perpetrators were
carrying firearms, which they must have known would be used
if the
plan went awry, yet they nonetheless actively associated themselves
with the criminal acts. It follows that their
convictions in
respect of the murder charge must also stand. The appeal
against these convictions therefore fails.
[45]
What remains are the applicants’
convictions for the unlawful possession of firearms and ammunition,
that is, counts four
and five. It is common cause that they did
not have any firearms in their possession. They were however
convicted of
these charges in the trial court on the basis of the
doctrine of common purpose.
[46]
In convicting the applicants for unlawful
possession of firearms and ammunition on the basis of the doctrine of
common purpose,
the trial court departed from settled jurisprudence.
The test for establishing liability for the possession of firearms
and
ammunition was established in
S v
Nkosi
as follows:
“
The
issues which arise in deciding whether the group (and hence the
appellant) possessed the guns must be decided with reference
to the
answer to the question whether the State has established facts from
which it can properly be inferred by a Court that: (a)
the group had
the intention (
animus
)
to exercise possession of the guns through the actual detentor and
(b) the actual detentors had the intention to hold the guns
on behalf
of the group. Only if both requirements are fulfilled can there
be joint possession involving the group as a whole
and the detentors,
or common purpose between the members of the group to possess all the
guns.”
[33]
[47]
This test has since been cited with
approval in numerous judgments of the High Court and the Supreme
Court of Appeal. In these
judgments, the courts have found
perpetrators guilty of a crime involving the use of firearms on the
basis of the doctrine of common
purpose, but nevertheless found that
the perpetrators could not be found to be guilty of the unlawful
possession of firearms on
the basis of this doctrine.
[34]
The test takes into account the fact that the application of the
doctrine of common purpose differs in relation to “consequence
crimes”, such as murder, and in relation to “circumstance
crimes”, such as possession. Burchell
in
Principles
of Criminal Law
,
differentiates between the two as follows:
“The
common-purpose rule is invoked in the context of consequence crimes
in order to overcome prosecutorial problems of proving
the normal
causal contribution between the conduct of each and every participant
and the unlawful consequence. Strictly speaking,
the rule has
no application in the context of criminal conduct consisting only of
circumstances.”
[35]
[48]
Burchell defines unlawful possession of a
firearm as an example of a “circumstance crime” in
relation to which the principle
of common purpose cannot strictly
apply in the same manner in which it applies in consequence crimes:
“Unlawful
possession of a firearm is punished under section 2 of the Firearms
Control Act.
Mbuli
emphasised that unlawful possession of a
firearm is a circumstance (or state of affairs) crime, that
possession had to be personal
or joint and that it is not enough to
establish joint possession that the firearm was possessed by only one
member in a criminal
group in furtherance of a criminal purpose with
others. Nugent JA in
Mbuli
did not accept the reasoning
of the Supreme Court of Appeal in
Khambule
and emphasised that
a common intention to possess a firearm intentionally can only be
inferred when the group had the intention
(
animus
) to exercise
possession of the firearm through the actual detentor and the actual
detentor had the intention to hold the firearm
on behalf of the group
[the test set out in
S v Nkosi
]. This test has
been followed in a number of Supreme Court [of Appeal] cases.”
[36]
[49] In
Molimi
, the Supreme Court
of Appeal upheld the appellant’s convictions in the court
a
quo
of murder and robbery, but overturned their convictions for
unlawful possession of firearms and ammunition. The Supreme
Court
of Appeal said:
“Counts 5 and
6 relate to the unlawful possession of firearms and ammunition.
It is common cause that the appellants,
at no stage, had physical
possession of any firearms themselves. Despite this they were
convicted on these counts.
The State sought to defend these
convictions on the basis of the decision by this court in
S v Khambule
where it was held that the common
intention to possess firearms jointly may be inferred in the
circumstances of a particular case.
. . . It follows that
Khambule
was overruled by
Mbuli
, and is no longer good
law. The State’s reliance on it is therefore misplaced.
Having failed to meet the requirements
as stated in
Nkosi
, the
State had not established any basis for the conviction of the
appellants. The convictions on these counts must therefore
also
be set aside.”
[37]
[50] The Supreme Court of Appeal
followed a similar approach in
Kwanda
when it held that:
“
The
fact that the appellant conspired with his co-accused to commit
robbery, and even assuming that he was aware that some of his
co-accused possessed firearms for the purpose of committing the
robbery, does not lead to the inference that he possessed such
firearms jointly with his co-accused.”
[38]
[51] The Court in
Dingaan
endorsed
Mbuli
, applying the test as set out in
Nkosi
and
similarly stating expressly that “acquiescence in [the
firearm’s] use for fulfilling the common purpose of robbery
is
not sufficient to establish liability as a joint possessor.”
[39]
[52] In
Modiba
, the Court applied
the principle in
Nkosi
and applied the SCA’s reasoning
in
Kwanda
as follows:
“
With
regard to the remaining charges of unlawful possession of a firearm
as well as ammunition, there are numerous cases where the
question of
joint possession of a firearm in the execution of a common purpose
was considered . . . . In this case however, it
has not been
established as to who physically possessed the firearm.
Although I found that the accused for purposes of this
judgment,
conspired with his companion(s) to commit the various acts of robbery
and murder, the State still has an onus to prove
that the accused had
the necessary mental intention (
animus
)
to possess the firearm. . . . What the SCA held in
S
v Kwanda
. . . is apposite. ‘The
fact that appellant conspired with his co-accused to commit robbery,
and even assuming that
he was aware that some of his co-accused
possessed firearms for the purpose of committing the robbery, does
not lead to the inference
that he possessed such firearms jointly
with his co-accused.’”
[40]
[53] The test was further endorsed in
Bolo
:
“
Mbuli
was
confirmed to be correct in
S v
Kwanda,
in which Theron
JA stated that the mere fact that the appellant conspired with his
co-perpetrators to commit robbery and was aware
that some of them
were armed with firearms in order to commit the robbery ‘does
not lead to the inference that he possessed
such firearms jointly
with his co-accused’. On the basis of these authorities it
appears to me that the magistrate erred
in his approach to the issue
before him. He decided that because all of the accused knew
that one of them possessed a firearm
and all were in agreement that
it should be used in the robbery, all of them were joint possessors.
As with
Mbuli
’s case, there is no evidence to show who
had physical possession of the firearm, so it cannot be established
whether the
actual possessor had the intention to possess it on
behalf of the group. There is also no evidence from which it
can be inferred
that the members of the group intended to possess the
firearm jointly with the unknown physical possessor.”
[41]
(Footnote omitted.)
[54] In the recent case of
Ramoba
,
the Supreme Court of Appeal once again affirmed this approach:
“
The
principles of joint possession in relation to the crime of unlawful
possession of firearms in instances of robbery committed
by a group
of people, as in this case are trite. They were aptly explained
by Marais J in
S v Nkosi
who, after finding in that case that there was actual physical
possession (
corpus
)
of the three guns by the three robbers individually, stated that the
only question to be decided was whether there was the necessary
mental intention or animus to render their physical possession of the
guns, possession by the group as a whole. The learned
judge
then said that the question of whether the group (and hence the
appellant) possessed the guns had to be decided with reference
to the
issue of whether the State had established, on the facts from which
it could be inferred by a court, firstly, that the group
had the
intention (
animus
)
to exercise possession of the guns through the actual detentor and
secondly, the actual detentors had the intention to hold the
guns on
behalf of the group.”
[42]
(Footnote omitted.)
[55] These cases show that there would
be very few factual scenarios which meet the requirements to
establish joint possession set
out in
Nkosi
. This is
because of the difficulty inherent in proving that the possessor had
the intention of possessing a firearm on behalf
of a group. It
is clear that, according to established precedent, awareness alone is
not sufficient to establish intention
of jointly possessing a firearm
or the intention of holding a firearm on behalf of another in our
law.
[56] When applying
Nkosi
to the
facts of the case at hand, there is no evidence from which it can be
inferred that the applicants had the intention to exercise
possession
of the firearms through the perpetrators who had firearms in their
possession, or that those persons had the intention
to hold the
firearms on behalf of all of the co-accused. It follows that
the fact that Matjeke and Makhubela conspired
with others to
commit armed robbery, even if they were aware that some of their
co-accused possessed firearms, does not lead to
the conclusion beyond
reasonable doubt that they possessed the firearms jointly with their
co-accused.
[57] There is thus insufficient factual
basis to sustain the conviction of unlawful possession of firearms
and ammunition on the
basis of the doctrine of common purpose.
The trial court therefore erred in finding Makhubela and Matjeke
guilty on these
counts. It follows that the convictions in
respect of the unlawful possession of the firearms and ammunition
cannot stand
and must be set aside. The appeal against these
convictions (counts 4 and 5) therefore succeeds, though given the
life sentences
meted out for murder, this has no practical effect on
the applicants’ incarceration.
Order
[58] In the result, the following order
is made:
1.
Condonation is granted.
2.
Leave to appeal is granted.
3.
The appeals are partially upheld.
4.
The order of the Full Court of the High Court of South Africa,
North West Division, Mahikeng is set aside only to the extent set
out
below:
“(a) The appeal by the applicants
against their convictions on counts 4 and 5 is upheld.
(b) Their convictions and sentences on these
counts are set aside.”
For George Sipho
Makhubela:
L Hodes SC at the request
of the Court from the Johannesburg Bar
For the State:
U Mokone, Director of Public Prosecutions, Mmabatho
[1]
In the trial court the accused were; Thabo
Matjeke (accused 1); Boswell Mhlongo (accused 2); George Makhubela
(accused 3); Alfred
Nkosi (accused 4); Thembekile Molaudzi
(accused 5); Samuel Sampie Khanye; (accused 7); and
Mr Victor Moyo
(accused 8). During the
proceedings, accused 6, referred to as “Mphume”, failed
to attend court proceedings
and subsequently disappeared. The
remaining co-accused successfully appealed to this Court against
their sentences and
convictions in:
S v
Khanye
[2017] ZACC 29
(
Khanye
);
S v Molaudzi
[2015]
ZACC 20
;
2015 (8) BCLR 904
(CC)
(
Molaudzi
);
and
S v Mhlongo
;
S v Nkosi
[2015] ZACC 19
;
2015 (8) BCLR 887
(CC)
(
Mhlongo
).
[2]
Matjeke and Others
v
S
[2013] ZANWHC 95
(
Matjeke
)
at para 1.
[3]
S v Ndhlovu and Others
[2002]
ZASCA 70;
2002 (6)
SA 305 (SCA).
[4]
45 of 1988.
[5]
Section 3(1) of the Evidence Amendment Act
reads as follows:
“
Subject to
the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless —
(a)
each party against whom the evidence is to be adduced agrees to
the
admission thereof as evidence at such proceedings;
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
(c)
the court, having regard to —
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into
account, is of the opinion that such evidence should be
admitted in the interests of justice.”
[6]
Matjeke
above n
2 at para 5.
[7]
Id at para 4-5.
[8]
Id at para 10.
[9]
Matjeke
above n
2 at paras 12-3.
[10]
Id at para 7.
[11]
Grootboom v National Prosecuting Authority
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC) states as
follows at para 23:
“
It
is now trite that condonation cannot be had for the mere asking.
A party seeking condonation must make out a case entitling
it to the
court’s indulgence. It must show sufficient cause.
This requires a party to give a full explanation
of the
non compliance with the rules . . . . Of
great significance, the explanation must be reasonable
enough to
excuse the default.”
[12]
See
The Head of
Department, Department of Education, Limpopo Province v Settlers
Agricultural High School
[2003] ZACC
15
;
2003 (11) BCLR 1212
(CC) at para 11 and
S
v Mercer
[2003] ZACC 22
;
2004 (2) SA
598
(CC);
2004 (2) BCLR 109
(CC) at para 4.
[13]
Mhlongo
above n 1 at para 15.
[14]
Id
at para 17.
[15]
Id.
[16]
Molaudzi
above n
1 at para 48.
[17]
Khanye
above n 1
at para 2.
[18]
See
S v Thebu
s
[2003] ZACC 12
;
2003 (6) SA 505
(CC);
2003
(10) BCLR 1100
(CC) (
Thebus
)
at para 18.
[19]
Id at para 8.
[20]
Mhlongo
above n 1 at para 30.
[21]
51 of 1977.
[22]
See
Mhlongo
above n 1 at para 30. See also
S v
Litako and Others
[2014] ZASCA 54
;
2015 (3) SA 287
(SCA) at para 54.
[23]
Mhlongo
above n 1at para 39.
[24]
Hoffmann
and Zeffertt
The
South African Law of Evidence
4
ed (Butterworths, Durban 1988) at 190, explains this by
distinguishing between two types of statements that relate
to common
purpose. These are “executive statements”
and “narrative statements”.
The former are
made in furtherance of a common purpose and are admissible evidence
against a co-accused while the latter constitute
an account or an
admission of a past event. Narrative statements are not
admissible against a co-accused because
admissions in general are
not vicariously admissible but may be admissible against the person
making them. In other
words, in order to be admissible,
the statement needs to form part of the acts done in the commission
of the crime.
[25]
Mhlongo
above n 1at para 40.
[26]
S v Molimi
[2006] ZASCA 43
(
Molimi
)
at para 33.
[27]
S
v
Mgedezi
1989 (1) SA 687(A)
(
Mgedezi
)
at 705I-6C.
[28]
Thebus
above n
18 at para 49.
[29]
Dewnath v S
[2014] ZASCA 57
at para 15.
[30]
Mgedezi
above n
27 at 705I-6C.
[31]
Thebus
above n
18 at para 49.
[32]
See above [37].
[33]
S v Nkosi
1998
(1) SACR 284
(W)
at 286H-I. .
[34]
See:
S v
Ramoba
[2017] ZASCA 74
(
Ramoba
);
S v Ngwane
[2015]
ZAGPJHC 166;
Bolo v S
[2014] ZAECGHC 99 (
Bolo
);
S v Modiba
[2013] ZAGPJHC 14 (
Modiba);
S v Dingaan
[2012] ZAECGHC 42 (
Dingaan
);
Kwanda v S
[2011] ZASCA 50
(
Kwanda
);
S v Mbuli
[2002] ZASCA 78
(
Mbuli); Molimi
above
n 26.
[35]
Burchell
Principles
of Criminal Law
5 ed (Juta & Co
Ltd, Cape Town 2016) at 483.
[36]
Id at 484.
[37]
Molimi
above n
26 at paras 37-8
.
[38]
Kwanda
above n
34 at para 5.
[39]
Dingaan
above n
34 at para 5. See also
Mbuli
above
n 34.
[40]
Modiba
above n
34 at paras 51-3.
[41]
Bolo
above n 34
at
paras 15-6.
[42]
Ramoba
above n
34
at para 11.