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[2010] ZAWCHC 67
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Gedezi and Another v S (A478/09) [2010] ZAWCHC 67; 2010 (2) SACR 363 (WCC) (5 March 2010)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: A478/09
In the matter between:
ANDILE
GEDEZI
First
Appellant
SIFISO
ZONDI
Second
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON 5th MARCH 2010
GAMBLE
AJ
:
Introduction
[1]
The
Appellants
appeared before the Regional Magistrate, Cape Town on a count of
murder, it being alleged that on Thursday, 16 June 2005
they kilIed a
certain Mr Zithulele Ntamo at Du Noon, north of Cape Town. During the
course of the trial
it
transpired
that Mr Ntamo had been shot in his home
in
a
informal settlement.
[2]
Both Appellants pleaded not guilty. After hearing the evidence of a
number of witnesses the Regional Magistrate duly convicted
both
Appellants as charged. They were each sentenced to 15 years
imprisonment with 3 years of the sentence of the Second Appellant
being ordered to run concurrently with a 4 year sentence he was
serving for an unrelated offence.
[3]
With the leave of the Court
a
quo
the
Appellants now appeal against both conviction and sentence. The
Appellants are jointly represented by Ms van der Westhuizen while
Mr
Vakele represents the State.
[4]
In the Court
a
quo
Ms
van der Westhuizen represented the Second Appellant (then accused
number 2) while the First Appellant was unrepresented for reasons
which will appear more fully below.
[5]
In argument before us Ms van der Westhuizen dealt fully with the
merits of the matter and the two sentences imposed. In addition
Ms
van der Westhuizen argued that an irregularity had occurred in the
Court
a
quo
relating
to the First Appellant's lack of legal representation. She contended
that this irregularity was of such a fundamental nature
that it
violated the proceedings before the Regional Magistrate in respect of
the First Appellant. We were asked to set aside the
First Appeliant's
conviction and sentence-on this ground alone and to remit his matter
for retrial.
The
right to a
fair
trial
[6]
Before dealing with the events which took place before the Court
a
quo
it
is apposite to consider the principles applicable to an accused
person's right to legal representation in a criminal trial.
[7]
The point of departure is the Constitution of the Republic of South
Africa, 1996. Section 35(3) thereof provides that:
"Every
accused has a right to a fair trial, which includes the right -...
(b) to have adequate time and facilities to prepare
a defence;...
(d)
to have their trial begin and conclude without unreasonable delay;
...
(f)
to choose
:
and be represented by, a legal practitioner, and to be informed of
this right;
(g)
to have a legal practitioner assigned to the accused by the State and
at State expense, if substantial injustice would otherwise
result,
and to be informed of this right".
[8]
There
are similar fair trial procedures in
section 73
of the
Criminal
Procedure Act, 51 of 1977
{"the Act") which represent the
common
law
position.
In my view it is not necessary to consider these at this stage since,
prima
facie,
a
violation of an entrenched constitutional right to a fair trial would
ordinarily lead to a quashing of the conviction unless there
remains
sufficient proof of guilt beyond reasonable doubt, notwithstanding
the irregularity complained of
1
.
[9]
In
Tshona's
case,
supra,
Jones
J put it thus at p 879 E:
"The
cross-examination in this case should in my view be regarded as more
than just a procedural irregularity. It is a constitutional
irregularity going to basic ideas of fairness and justice which
obtain in this country and ail civilised countries. This
irregularity,
serious as it may be, does not automatically vitiate
the conviction. The question still arises whether or not there has
been a failure
of justice, and that question is, in turn, dependent
upon whether or not, when the effect of the unfairness is eliminated,
there
remains sufficient evidence for proof of guilt beyond
reasonable doubt."
Factors
leading to the absence of legal representation for the First
Appellant at trial
[10]
According to the charge sheet the Appellants were arrested on 27
September 2005, some three months after the fatal shooting.
They
appeared before the Magistrate, Cape Town on that day and their
rights regarding legal representation and legal aid at State
expense
were explained to them by the presiding officer. Both Appellants
indicated that they would conduct their own defences. Furthermore,
they declined any assistance that was offered to them there and then
by a representative of the Legal Aid Board's Cape Town Justice
Centre.
[11]
During a subsequent appearance in the Magistrate's Court on 24
November
2005
the
prosecutor informed the court that there was a possibility that the
matter
would be referred to the High Court. Both accused persisted
in conducting their own
defences at that stage. The First
Appellant is recorded as having remarked that 'I
only
want a Xhosa-speaking lawyer otherwise I am not interested"
while
the Second Appellant said
"I
just feel I want to conduct my own defence".
[12]
After
a number of further appearances the case was postponed until 6 April
2006
at
the request of the State. The Magistrate recorded that this was a
"final
remand".
[13]
On 6 April 2006 the Appellants appeared before the Regional
Magistrate for the first time. The First Appellant was in person
while the Second Appellant had an attorney. At the request of the
State the matter was once again postponed, this time until 17 May
2006. The Regional Magistrate cautioned the State in terms of
Section
342A
of the Act against an unreasonable delay in the trial.
[14]
On 17 May 2006 the prosecutor is recorded as having informed the
court that the investigation was complete and that the matter
could
be postponed for the procurement of a trial date in the Regional
Court. To this end the matter was adjourned until 29 May 2006.
[15]
On 29 May 2006 the mater was then further postponed to 12 July 2006
for the fixing of a trial date. On 12 July 2006 the Regional
Magistrate postponed the matter for the trial which was to begin on
14 November 2006. The second day of trial was fixed at that time
too:
it was to be 20 November 2006.
[16]
On 14 November 2006 only the First Appellant was before Court. It
appears 1hat in the interim the Second Appellant had been sentenced
in an unrelated matter and was imprisoned elsewhere. The matter couid
accordingly not proceed and it was postponed to the following
week
for the trial to commence on 20 November 2006.
[17]
At the hearing on the 14
,h
November, Ms van der Westhuizen appeared on behalf of both accused.
She informed the Court that the First Appellant had terminated
her
mandate on that day and that he had appointed Adv Bobotyane to handle
his defence. This seems to accord with his earlier indication
that he
wished to be represented by a Xhosa-speaking lawyer.
[18]
The Regional Magistrate then enquired of the First Appellant when he
had appointed the advocate to which he replied that it had
been the
previous week - he thought on the Sunday. The Regional Magistrate
cautioned the First Appellant that the matter would proceed
on the
20
th
November. She pointed out that the matter had been postponed from
July 2006 and that one of the witnesses (who was evidently in witness
protection) was due to travel to Cape Town from the Eastern Cape for
the hearing on the 20
,h
.
It was noted that Mr Bobotyane was absent and had not been excused by
the Court.
[19]
All of the abovementioned recordais form part of the manuscript notes
on the charge sheet. While they are somewhat cryptic they
clearly
show that all of the postponements of the case prior to 20 November
2006 had been at the request of the State or because
of the absence
of Second Appellant on 14 November 2006. The First Appellant was also
not ready to proceed on that day. All the while
the Appellants were
remanded in custody.
[20]
The proceedings from 20 November 2006 onwards were mechanically
recorded and the transcript thereof is part of the record before
us.
It is necessary to quote at length from passages in the record to
consider whether the First Appellant had a fair trial.
[21]
Before the charges were put to the Appellants on the 20
th
November counsel for the First Appellant addressed the Court and the
following exchanges occurred:
"MR
BOBOTYANE
:
Your Worship indeed 1 confirm that i appear for Mr Gedozi [sic] in
this case Your Worship and I understand that the case today is
on the
roll for purposes of plea and trial, Your Worship on my side I am not
ready to proceed with this trial Your Worship. Your
Worship I believe
on the last case I informed the Court ~ on Monday last week I was
only given instructions to appear for the accused
on the Sunday -
which the accused appeared on the Monday. And now my instructing
Attorney in this matter Your Worship made arrangements
to consult
with the accused in Goodwood Prison Your Worship. The accused is
currently serving sentence in Goodwood Prison and my
instructing
Attorney had to make now an appointment for the weekend to consult in
Goodwood Prison Your Worship but now my instructing
Attorney Your
Worship experienced some problems Your Worship at home then he had to
leave the Western Cape Your Worship and he had
to go the Eastern Cape
Your Worship. At this point in time Your Worship he is on his way
from the Eastern Cape Your Worship to attend
one of the family
problems Your Worship - serious problems at home. Therefore Your
Worship I'm standing before this Court Your Worship
without any
instructions
Your Worship
pertaining
to
the
merits
of
the
case
Your
Worship.
And also (indistinct) I was informed by the Court that today this
case should run. I could not get my colleague to get (indistinct)
but
without the instructions from my instructing Attorney I'm not.in a
position Your Worship to run this case. The appointment was
for
Sunday but he could not go.
COURT
:
Is State ready?
PROSECUTOR:
State is ready to proceed Your Worship in this case Your Worship.
COURT
:
This trial is going to run Mr Bobotyane you can then decide what you
have to do and what you do not have to do. This ~ it is not
acceptable for a case to be postponed from July until November and
then instructions been given the day before trial Number 1 you
should
say no to that type of instructions because the trial date is the
next day, number 2 they should not have waited three, four
months
before instructing you. I'm not going to - it's not only him in this
case, tnere are many other parties. The State, their
witnesses,
Ms
van der Westhuizen. the other accused. So this trial is continuing
today you can decide what you want.
MR
BOBOTYANE
:
Your Worship in all respect Your Worship - with due respect to Court
I understand that the...
COURT
:
This is not - this is not open to discussion this is my order it will
continue so you must decide what you...
MR
BOBCTYANE
:
Your Worship may I then consult my (indistinct) in this matter to see
what step should I take then from him because I'm here (indistinct)
and if he says that i should proceed then I will but if he says not
then I'll have to consult Your Worship.
COURT
:
I'll give you
a
few
minutes - I'm not going to - consult Mr Bobotyane please don't try to
take the back door out of here, its 11 o'clock â 12 o'clock
sorry
and at! these very same parties that I just mentioned are also not
going to sit until 4 o'clock while you consult. The trial
will
proceed.
'MR
BOBOTYANE
:
I understand - Your Worship I just want to consult my
instructing Attorney then I'll come back with...
COURT
:
The Court will adjourn for
a
few
minutes.
MR
BOBOTYANE
:
As the Court pleases.
COURT
ADJOURNS
:
ON
RESUMPTION
:
MR
BOBOTYANE
:
I've consulted Your Worship with my instructing Attorney, Mr Malwane,
in this matter and he instructed myself Your Worship that
in the
event that then the situation Your Worship then I should withdraw as
(indistinct) and then if then the Honourable Court Your
Worship does
not excuse me from record Your Worship then I've got no choice but to
stay on record, but however no questions then
I'll be able to ask the
witness as now...
COURT
:
Sir are you now pre-emptying things here by saying that to me.
MR
BOBOTYANE
:
Not really.
COURT
:
Are you ~ you are, that is what you're doing and I don't
take
kindly to that.
MR
BOBOTYANE
:
Your Worship I...
COURT
:
At all.
MR
BOBOTYANE
:
No not really Your Worship.
COURT
:
No., not really Mr Bobotyane that's really - I'm telling you now and
I'm trying to teach you for future reference, that last part
you
added is not acceptable. When it gets to that...
MR
BOBOTYANE
:
Your Worship my apologies Your Worship.
COURT
:
When it gets to that - when it gets to that you can get up and say
something and things can be sorted out. Don't - because it boils
down
to a threat and I do not take lightly.
MR
BOBOTYANE
:
As the Court pleases.
COURT
:
Anything like that.
MR
BOBOTYANE
:
As the Court pleases Your Worship my apologies for that last part
Your Worship. That is the situation Your Worship I've got
instructions
to withdraw from this matter Your Worship that is my
instructions.
COURT
:
The reason being - the reason being?
MR
BOBOTYANE
:
Your Worship lack of instructions Your Worship.
COURT
:
What kind of instructions?
MR
BOBOTYANE
:
As to the merits of the case Your Worship. I believe then the
instructing Attorney Your Worship will sort out everything
(indistinct).
COURT
:
Accused 2 your Advocate now requests to be excused, do you v/ish to
say anything'? There's no microphone there - sorry accused 1.
ACCUSED
1
;
What I want to say to the Court Your Worship is that I wish to have a
private Attorney representing me in this matter. I don't want
a Legal
Aid Attorney representing me Your Worship and I cannot also defend
myself on this matter. So I want a private - the Attorney
of my
choice.
COURT
:
Sir you had four months to finalize those arrangements why did you
not do it?
ACCUSED
1
:
First thing is that Your Worship I'm not working and my family are
struggling - they struggled Your Worship to get the money to
get to -
to collect the money in order to pay the Lawyer so that's why there
was a delay.
COURT
:
Sir on the day we set this trial date you were represented by Legal
Aid - a day before the trial started you contacted a private
Attorney. I am not going - in the interest of justice remand this,
case any further. The witnesses are here, the Prosecutor is ready,
your other co-accused is ready, the interpreter is here. In total
there are about 20 people that are being affected not just you
sc
this trial will proceed today. You're excused Mr Bobotyane because I
cannot force a legal representative to stay on record because
it
would be at the end of the day prejudicial to the accused.
MR
BOBOTYANE
:
As the Court pleases.
COURT
.
PROSECUTOR:
State is ready to put the charge.
COURT:
Proceed.
MR
BOBOTYANE
:
Sorry accused 1 wishes to
say
something
Your
Worship.
COURT
:
Yes.
ACCUSED
1
:
I am not prepared Your Worship to continue with this trial without an
Attorney Your Worship - this is not just a (indistinct) this
is a
murder case Your Worship and (indistinct) not prepared to continue
with this case.
COURT
:
Sir the Court has made an order the trial will proceed today.
Unfortunately it is your negligence and your arrangements that caused
you to be in the position you are today, it's not the Court's fault,
it's not the Prosecutors fault, it's not Mr Bobotyane's fault,
it's
not Ms van der Westhuizen's fault, it's not the interpreter's fault
it is you that instructed an Attorney the day before trial,
after
four months having lapsed and in the interest of justice J aw not
going to prejudice all the other parties for that reason.
The trial
proceeds today.
ACCUSED
1
:
Your Worship there is nothing that I will say to the Court if the
Court feels that the trial is going to proceed now, but i want
to
tell the Court that there's nothing that I will say to the witnesses
or any - I won't ask any questions because i think it's my
right that
I be defended by the Attorney that is of my choice. Your Worship !
cannot just continue with this trial on my own I need
an Attorney or
somebody to represent me in this matter Even the Legal Aid Attorney
that came here was not chosen by me Your Worship
! was not even here
in court ~ he just came to me telling me that he was going to
postpone the case for trial date. 1 never signed
anything or had any
documents to say that I'm accepting him as my
Attorney.
Even (indistinct) t never signed anything to accept the Legal Aid
Attorney as being my Attorney.
COURT
:
Ms van der Westhuizen was there an application?
MS
V.D.WESTHUIZEN
:
Yes Your Worship (indistinct).
COURT
:
Sir this is the very last on this. Just like it is your negligence
that you are standing without representation today if at the
end of
the day you do not ask questions and you do not speak to the
witnesses it will be your negligence that caused it. The Court
will
not allow you to hold the rest of the parties' hostage with that kind
of attitude. I am going to warn you now to not take that
road. If you
do take that.road it's going to be on your own head and your own
prejudice. You do have a right to have an Attorney
of your choice but
you do not have the right to unreasonably delay and delay and delay a
case before Court. This case was set down
for two days four months
ago. You did not bring your side to the table. I cannot stop you from
doing that but the trial will still
proceed and it will be to your
prejudice if you do take that road. You may be seated thank you sir.
You may continue.
CHARGE
(ACCUSED 1 AND 2)
Murder
COURT
:
Accused 1 do you understand the charge?
ACCUSED
1
:
I've said before Your Worship that I am not (indistinct) to nothing
because I cannot continue with this trial without my Attorney
and I
cannot continue with this trial on my own.
COURT
:
Let me just explain this to you sir. The
Criminal Procedure Act makes
provision for this kind of attitude. This trial can continue and be
finalized without you saying a word and nobody will point a finger
at
anybody besides you. It is not a very intelligent choice and it's not
going to get you anywhere. The
Criminal Procedure Act even
makes
provision for the trial to continue while you sit in the cells if you
want to. It ail at the end of the day comes back to you
because you
are making that choice. Whether you were advised to do it and whether
you're doing it out of your own accord I'm now
telling you it is not
a wise choice and I suggest that during the lunch break you
reconsider because all you are doing is harming
yourself. I can help
you with the trial while the witnesses are testifying if you
cooperate. If you don't and you make that
choice I can't do
anything to stop that prejudice because that is your own choice and
you're bringing it upon yourself. Do you understand
the charge?
ACCUSED
1
:
I said I'm going to answer nothing Your Worship and there's nothing I
will ask without an Attorney.
COURT
:
Then it is as easy as entering a plea of not guilty. Accused
2 do
you understand the .charge?
ACCUSED
2
:
I- understand Your Worship.
PLEA
(ACCUSED 2)
'
Not guilty."
[22]
The First Appellant refused throughout the trial to take any part in
the proceedings - he refused to cross examine any State
witnesses; he
refused to testify; he did not cross-examine the Second Appellant
when he gave evidence; he did not address the Court
in argument on
the merits; he refused to admit his previous convictions (which
necessitated a host of police witnesses being called
to verify these)
and he did not address the Court in mitigation of sentence. On a
number of occasions he simply refused to reply
when addressed by the
Court
a
quo.
[23]
In the passage from the transcript referred to above the Regional
Magistrate was at pains to point out to the First Appellant
that by
not participating in the proceedings he was essentially the cause of
his own prejudice.
[24]
But was this really so? In my respectful view, by refusing Adv
Bobotyane a reasonable opportunity to take instructions from the
First Appellant the Regional Magistrate effectively closed the door
for the First Appellant on any meaningful participation in the
proceedings.
[25]
The facts show that the request by Adv Bobotyane for a postponement
of the matter on 20 November 2006 for the purposes of taking
proper
instructions was the first request from the First Appellant for an
indulgence from the Court, save for 14 November when the
matter could
in any event not proceed. In the light of the circumstances then to
hand, it was, in my respectful view, a reasonable
request. The First
Appellant was incarcerated in the Goodwood Prison, not as an awaiting
trial prisoner but having been sentenced
in another matter and it
appears from Adv Bobotyane's address to the Court that his
instructing attorney had (for personal reasons)
been unable to visit
the First Appellant in prison to take instructions to properly brief
counsel.
[26]
The Regional Magistrate placed the blame for the attorney's alleged
inability to take instructions entirely on the First Appellant
who,
she said, had had four months to find a legal representative and had
left it till the very last to find one. The First Appellant
explained
why instructions had been given at a late stage. It seems to me that
the First Appellant (as a layman) was entitled to
assume that having
found an attorney it was then up to the latter to ensure that he was
adequately prepared for trial. The subsequent
inability of the
attorney to take instructions during the week in which the matter
stood down to get the Second Appellant before
the Court was due to
the attorney's non-availability and was not attributable to any
dilatory tactic on the part of the First Appellant.
[27]
I am not without sympathy for the Court
a
quo
not
being able to continue with the matter, particularly since the
principal witness for the State had come from the Eastern Cape,
was
in witness protection and had a small child. But in my view the
inconvenience to the Court and the witnesses of a short postponement
was far outweighed by the prejudice to the First Appellant who was
then effectively deprived of the right to legal representation.
[28]
It must be borne in mind that this was no petty crime. The First
Appellant was charged with murder and faced a minimum sentence
of 15
years imprisonment. The conduct of the Regional Magistrate in those
circumstances had the effect of compromising the constitutionally
entrenched rights of the First Appellant.
[29]
It is correct, as the Regional Magistrate said, that the First
Appellant was not the only person that would be prejudiced by
the
turn of the events. According to her there were
"about
20 people being affected not just you"
and
therefore it was in the interests of justice that the matter
proceeded without further ado. in my view the inconvenience (there
was no mention of any real prejudice to the "20" others) of
a short postponement of say a couple of days
2
to enable Mr Bobotyane to take instructions, would have been far less
than the manifest prejudice to the First Appellant who was
effectively deprived of counsel
3
.
[30]
In one of the early decisions in the Constitutional Court
4
,
Acting Justice Kentridge remarked as follows regarding the import of
the fair trial provisions of section 25(3) of the Interim
Constitution
of 1993, which was the fore-runner of section 35(3):
"[16]
... The right to a fair trial conferred by that provision is broader
than the list of specific rights set out in paragraphs
(a) to (j) of
the subsection. It embraces a concept of substantive fairness which
is not to be equated with what might have passed
muster in our
criminal courts before the Constitution came into force. In S v
Rudman and Another; S v Mthwana
1992 (1) SA 343
(A), the Appellate
Division, while not decrying the importance of fairness in criminal
proceedings, held that the function of a Court
of criminal appeal in
South Africa was to enquire 'whether there has been an irregularity
or illegality. That is a departure from
the formalities, rules and
principles of procedure according to which our law requires a
criminal trial to be initiated or conducted'.
A
Court of appeal, it was said at (377),
'does
not enquire whether the trial was fair in accordance with 'notions of
basic fairness and justice", or with the "ideas
underlying
the concept of justice which are the basis of all civilised systems
of criminal administration".'
That
was an authoritative statement of the law before 27"' April
1994. Since that date s 25(3) has required criminal trials or
criminal appeals to give content to those notions".
[31]
The Regional Magistrate incorrectly ascribed the First Appellant's
inability to proceed on 20 November
to
his
negligence: this was a clear misdirection.
I
am
of
the
view that the Regional Magistrate did not exercise her discretion to
grant or refuse a postponement properly and her decision
to refuse a
postponement in the circumstances amounted to an irregularity in the
proceedings which was of sufficient magnitude that
it could readily
be said that the First Appellant did not have a fair trial
5
.
In the light of the severe prejudice to the First Appellant, this
Court is entitled to intervene
6
.
[32]
In the circumstances the conviction and sentence of the First
Appellant fall to be set aside and the matter remitted to the
Regional
Court for retrial before a different magistrate. Mr Vakele
accepted that this was the correct route to follow in the
circumstances.
The
position regarding the Second Appellant
[33]
Throughout the trial in the Magistrate's Court the Second Appellant
enjoyed the services of Ms van der Westhuizen. He did not
therefore
suffer the same fate as the First Appellant. The question that must
however be asked is whether the irregularity committed
in respect of
the First Appellant so permeated the proceedings that- it could be
said that the Second Appellant did not have a fair
trial either. To
answer this question it is necessary to look at the evidence before
the Court a
quo.
[34]
The main witness before that Court was Ms Phumza Ntamo, a daughter of
the deceased. She testified that she knew both the First
Appellant
(who used to be her boyfriend) and the Second Appellant (who was a
friend of the First Appellant). She testified that the
First
Appellant had previously been involved in a shooting incident in
Khayelitsha in which he had shot her sister in the foot. The
two
women were scared and then left the area in an attempt to avoid
further contact with the First Appellant. They ended up living
with
their father at B108 Ngena Street, Du Noon, an informal settlement
probably some 25 kilometres to the north of Khayelitsha.
[35]
About three weeks before the death of her father Ms Ntamo met the
Second Appellant at a neighbourhood beauty contest. He gained
her
confidence by spinning her a yarn that he was then a police officer
and enquired about her sister, Phumeza Ntamo ("Phumeza")
indicating that the First Appellant wanted to make contact with her
again. Ms Ntamo pointed out her sister to the Second Appellant
who
then engaged the latter in conversation. Phumeza, however, refused to
talk to the Second Appellant saying she did not wish to
have contact
with any friends of the First Appellant.
[36]
Ms Ntamo said that she later concluded that the First Appellant must
have sent the Second Appellant to Du Noon to scout around
for Phumeza
because a couple of days before the shooting the Second Appellant was
in her neighbourhood asking after her and her sister.
[37]
Sometime after 8 pm on the evening of Thursday, 16 June 2005, Ms
Ntamo was at her neighbour's house, no B 107 Ngema Street, watching
a
popular television "soapie". She was seated near a window
from where she had a unimpeded view of her father's yard barelya
couple of metres away.
[38]
She testified that she heard voices and recognised that of the First
Appellant, her former boyfriend, who was in conversation
with her
father. She looked through the window into the yard which was well
lit and saw both the First and Second Appellants, each
brandishing a
firearm. The First Appellant was looking for Phumeza and was
attempting to force his way into the house through the
front door
where her father was standing.
[39]
The First Appellant suddenly opened fire on her
father
and
Ms
Ntamo instinctively ducked out of sight and closed the curtain. She
heard a further two shots. The two Appellants then ran away
amongst
the houses and Ms Ntamo went to her home where she found her father
lying in a pool of blood. The paramedics who later attended
the scene
pronounced him dead.
[40]
The State adduced ballistic evidence to show that all three rounds of
ammunition were discharged from the same firearm which,
unfortunately, was never recovered. There was also the usual evidence
to show that the deceased suffered no further injury until
a post
mortem was performed on his body, the cause of death having been
found to be a gunshot wound to the head.
[41]
The second Appellant's defence initially put to Ms Ntamo by Ms van
der Westhuizen was that he denied ever being at the scene
of the
shooting. He claimed too that he did not know either Mr Ntamo, the
First Appellant or Ms Ntamo. He denied ever having been
at the beauty
contest or that he had ever spoken to Ms Ntamo.
[42]
Ms Ntamo was surprised by these denials and responded that
"my
witness is the photo".
This.was
a reference to a photo taken of the two of them together at the
beauty pageant. This smart retort caught the Second Appellant
completely off his guard and his attorney then asked for a brief
opportunity to consult with him.
[43]
Thereupon the Second Appellant's version changed and he admitted
having met Ms Ntamo at the pageant but denied any knowledge
of her
sister or of any conversation in relation to her. He persisted in his
denial that he did not know the First Appellant.
[44]
Under cross-examination the First Appellant struggled to explain his
change of instructions to his attorney. He then claimed
that he had
approached Ms Ntamo at the beauty contest with the intention of
starting a relationship with her. This, of course, was
never put to
the State witness and he had great difficulty explaining the
background to this romantic endeavour to the Court.
[45]
The Second Appellant was a poor witness who was evasive and
mendacious. Ms Ntamo on the other hand was a good witness who had
a
relatively simple story to tell. Her powers of observation were good
and she was able to identify the assailants who were a couple
of
metres away'from her in the adequately lit yard. In my view, the
Regional Magistrate correctly preferred her evidence to that
of the
Second Appellant.
[46]
As far as the Second Appellant is concerned, I am of the view that
the State established beyond reasonable doubt that he was
in the yard
of the Ntamo home on the night in question and that he was armed with
a hand-gun. His explanation and denials to the
contrary are without
merit and fall to be rejected in the light of the direct and credible
evidence of Ms Ntamo in that regard.
[47]
The evidence of Ms Ntamo does not conclusively establish that the
Second Appellant fired any shots that struck the deceased,
or for
that matter, any shots at, all. He cannot therefore be convicted as a
perpetrator of the crime of murder. The Regional Magistrate
found,
however, that the Second Appellant was guilty on the basis of
"gemeenskaplike
opset"
("common
purpose") with the First Appellant. Her finding in this regard
appears to be based on the following facts.
47.1.
The Second Appellant went about looking for Ms Ntamo and eventually
tracked her down at the beauty contest.
47.2.
When he spoke to Ms Ntamo at the contest the Second Appellant made
specific reference to the First Appellant and the latter's
desire to
meet up with her sister.
47.3.
The Sunday before the murder the Second Appellant scouted around the
neighbourhood and established which was the Ntamo home.
47.4.
On Thursday, 16 June he accompanied the First Appellant to the Ntamo
home (the inference being that he pointed it out to the
First
Appellant).
47.5.
Both men were armed and stood outside the house with their handguns
drawn,
47.6.
The Second Appellant kept a look out while the First Appellant did
the shooting
[48]
The so-called
"doctrine
of common purpose"
is
a common law principle derived from English law.
7
In
Burchefl
and Milton,
Principles
of Criminaf Law
2"°
ed,
the doctrine Ls described as follows at p 393:
"Where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible
for specific
criminal conduct committed by one of their number which falls within
their common design. Liability arises from their
'common purpose' to
commit the crime".
[49]
During the political violence and social upheaval which preceded the
advent of the democratic order in South Africa, the doctrine
obtained
almost pejorative meaning in certain quarters as it was often relied
upon in the prosecution of public violence and related
offences. In
2003 the Constitutional Court delivered a . comprehensive analysis of
the principle and confirmed its constitutionality
and itsplace in our
criminal law
8
.
In the main judgment, Justice Moseneke dealt with the doctrine as
follows by way of general introduction;
"[19]
The liability requirements of a joint criminal enterprise fall into
two categories. The first arises where there is a prior
agreement,
express or implied, to commit a common offence. In the second
category, no such prior agreement exists or is proved. The
liability
arises from an active association and participation in a common
criminal design with the requisite blameworthy state of
mind."
[50]
The Learned Judge then went on to consider
inter
alia
the
issue of causation in cases of common purpose in the light of various
decisions of the Supreme Court of Appeal in the last decade
or so
9
and said the following at p 527 D:
"[34]
In our law, ordinarily., in a consequence crime, a causal
nexus
between the conduct of an accused and the criminal consequence is
a
prerequisite
for criminal liability. The doctrine of common purpose dispenses with
the causation requirement. Provided the accused
actively associated
with the conduct of the perpetrators in the group that caused the
death and had the required intention in respect
of the unlawful
consequence, the accused would be guilty of the offence. The
principal object of the doctrine of common purpose is
to criminalise
collective criminal conduct and thus to satisfy the social 'need to
control crime committed in the course of joint
enterprises'
(R
v Powell and Another; R v English
[1997]
4 Ail ER 545 (HI) at 545 H - !). The phenomenon of serious crimes
committed by collective individuals, acting in concert, remains
a
significant societal scourge. In consequence crimes such as murder,
robbery, malicious damage to property and arson it is often
difficult
to prove that the act of each person or of a particular person in the
group contributed causally to the criminal result.
Such a causal
prerequisite for liability would render nugatory and ineffectual the
object of the criminal norm of common purpose
and make prosecution of
collaborative criminal enterprises intractable and ineffectual''.
[51]
The Court went on and dealt with various of the alleged infringements
with entrenched constitutional rights such as dignity,
freedom,
presumption of innocence and arbitrary deprivation of freedom, which
the Appellants in that matter contended were occasioned
by reliance
on the doctrine of common purpose. The Court rejected all of these
arguments in confirming the applicability of the principle.
[52]
The position then is that the doctrine of common purpose as developed
by the Supreme Court of Appeal (and its predecessor in
title) over
the years is still very much part of our law and has been
constitutionally sanctioned.
[53]
In
S
v Madlala
10
Holmes
J A expressed himself thus in relation to the question of causation
in cases of common purpose:
"It
is sometimes difficult to decide, when two accused are tried jointly
on a charge of murder, whether the crime was committed
by one or the
other or both of them, or by neither. Generally, and leaving aside
the position of an accessory after the fact, an
accused may be
convicted of murder if the killing was unlawful and there is proof-
a)
that he individually killed the deceased, with the required dolus eg
by shooting him; or
b)
that he was a party to a common purpose to murder, and one or both of
them did the deed; or
c)
that he was a party to a common purpose to commit some or other
crime, and he foresaw the possibility of one or both of them
causing
death to someone in the execution of the plan,
yet he persisted, reckless of such fata! consequence, and it
occurred; see
S
v
Malinga and Others
1963
(1) SA 692
(A) at 694 F-H and 695; or
d)
that the accused must fall within (a) or (b) or (c) - it does not
matter which, for in each event he would be guilty of murder".
(Emphasis
added).
[54]
in the celebrated decision of Botha J A in
S
v
Safatsa
and Others
11
we
are reminded, in relation to the aforesaid
dictum
in
Madlala
that:
"In
this formulation of the legal position relating to common purpose it
is quite clear, in my opinion, that there is no room
for requiring
proof of causation on the part of the participant in the common
purpose who did not 'do the deed' (i.e. the killing).
This '
fortifies my view that it was, not intended in
Thomo's
case
12
to
lay down that a causal connection had to be established between the
acts of every party to a common purpose and the death of the
deceased
before a conviction of murder could ensue in respect of each of the
participants".
(Emphasis
added).
[55]
Snyman,
Criminal
Law (5
lh
ed) at p 268 deals with the intersection of common purpose and
dolus
eventualis
as
follows:
"For
X to have a common purpose with others to commit murder it is not
necessary that his intention to kill be present in the
form of
dolus
directus
.
It is sufficient if his intention takes the form of
dolus
eventualis
,
in other words if he foresees the possibility that the acts of the
participants with whom he associates himself may result in Y's
death
and reconciles himself to this possibility.
Thus
if a number of persons take part in a robbery or housebreaking, and
in the course of events one of them kills somebody, the mere
fact
that they all had the intention to steal, to rob or to break in is
not necessarily sufficient to warrant the inference that
all of them
also had the common purpose to kilt. One can steal, rob or break in
without killing anybody. Whether the member of the
gang who did not
directly participate in the shooting or stabbing of or assault upon
the deceased also had the intention to murder
must be decided on the
facts of the individual case. Such an inference may, for example, be
drawn from the fact that that particular
member of the gang knew that
the assailant carried a revolver or a knife and that he might use it,
or knew that there would be people
inside the house who would resist
the housebreaking".
[56]
In the present case there can be no doubt that the presence of the
Second Appellant at the Ntamo home was to further the commission
of
an offence. Having reconnoitred the area "a few days before and
having established the potential whereabouts of Phumeza,
he armed
himself with a firearm and proceeded to her house under cover of
dark. Given the fact that the Second Appellant knew that
there was no
longer a relationship between the First Appellant and 'Ms Ntamo and,
further, that he knew that the First Appellant
wanted to re-establish
contact with Phumeza, there could have been iittle doubt in his mind
what the purpose of their sortie was.
After all, when they met at the
beauty contest Ms Ntamo says that the Second Appellant spoke to her
as follows:
"
... He told me Your Worship that he wanted to meet my sister because
he wanted to tell her how can she get hold of Andile [i.e.
the First
Appellant] because Andile needed somebody who knows how to use the
gun so that they can stand face to face and shoot each
other".
[57]
In the circumstances I am satisfied that the Second Appellant went to
the Ntamo residence knowing that it was the intention of
the First
Appellant to confront Phumeza and to shoot her. He collectively
associated himself with that purpose by accompanying the
First
Applicant, by taking along a firearm and, most importantly,
brandishing his hand-gun while standing just a few paces from the
door of the house.
[58]
The issue that then arises is what the extent of the Second
Appellants collective liability is when the First Appellant shoots
not Phumeza, but her father. The Second Appellant's defence was a
complete denial of any involvement in the shooting and a denial
that
he was ever there. It may have been different if the Second Appellant
had taken the Court a
quo
into
his confidence and, for example, claimed that the First Appellant had
gone beyond their intended "collective criminal conduct".
[59]
In
S
v Moiimi and Another
13
,
a
case involving a shoot-out when a group of men went on a robbing
spree in a shopping mall and a member of the public was shot and
killed when a private citizen intervened in the malaise and attempted
to apprehend one of the robbers, Cachalia A
J
A
(as he then was) said the following:
"Once
all the participants in the common purpose foresaw the possibility
that anybody in the immediate vicinity of the scene
couid be killed
by cross-fire, whether from a law-enforcement official or
a
private
citizen, which in the circumstances of this case they must have done,
dolus
eventialis
was proved".
While
this
dictum
demonstrates,
once again, that each matter is case-specific, it does show the
extent to which
dolus
eventualis
can
ultimately be found to exist in circumstances where the original
criminal plan was of a somewhat different nature.
[60]
In my view, on a consideration of all the evidence, the only
reasonable inference is that the Second Appellant must have, and
in
fact did foresee that someone other than Phumeza couid be injured or
killed in the course of their escapade. He would have foreseen
that
to get to her, they may have had to force their way into a family
home and it was likely that they may have to use force, including
their firearms, in the process. This is the only reasonable inference
to be drawn from the fact that their weapons were drawn and
at the
ready. The fatal shooting of Mr Ntamo was therefore foreseen as a
possiblity to the Second Appellant and I consider that his
mens
rea
in
the form of
dolus
eventualis
was
established by the State.
[61]
I am therefore satisfied that the Second Appellant was correctly
convicted of murder on the basis of the doctrine of common purpose.
Accordingly his appeal against his conviction must fail.
Sentence
[62]
The offence with which the Appellants were charged carries a
prescribed minimum sentence (in terms of section 52 of Act 105 of
1997) of 15 years imprisonment, unless substantial and compelling
circumstances are found to exist. In respect of the Second Appellant
the Court a
quo
found
that no such circumstances had been established and a sentence of 15
years was therefore imposed. The Regional Magistrate considered
the
Second Appellant's personal circumstances and found that these
warranted that 3 years of the sentence should run concurrently
with
another sentence that he was serving at the time.
[63]
In argument Ms van der Westhuizen urged us to find that the following
factors constituted substantial and compelling circumstances
which
warranted the imposition of a lesser sentence.
63.1.
The relatively young age of the First Appellant at the time of the
commission of the offence: he was a month shy of his 20
th
birthday;
63.2.
The fact that the Second Appellant was not the principal perpetrator
of the offence; and
63.3.
The finding that the Second Appellant's
mens
rea
was
in the form of
dolus
eventualis.
[64]
It is true that these factors could be considered mitigatory, but on
the other hand, the Second Appellant has a previous conviction
for
the unlawful possession of a firearm for which he commenced serving a
sentence of four years imprisonment in August 2006. Moreover,
the
offence itself is all too prevalent - an innocent law-abiding citizen
brutally shot in the sanctity of his home.
[65]
I am of the view that the sentence of 15 years imprisonment was
appropriate in the circumstances, if not a little on the light
side,
There is therefore no reason to interfere.
[66]
The Regional Magistrate ordered that three years of the Second
Appellant's sentence run concurrently with the four year sentence
referred to above. This she did because she considered that there
should be some difference between his sentence and that of the
First
Appellant, There is no reason to interfere with this consideration of
leniency on the part of the Court a
quo.
Conclusion
[67]
In the circumstances I would make the following order;
Ad
the First Appellant
The
appeal against conviction and sentence succeeds.
The
conviction and sentence are set aside and the matter is remitted to
the Regional Court for a hearing
de
novo
before
a different Regional Magistrate.
Ad
the Second Appellant
1. The
appeal against the conviction is dismissed.
2. The
appeal against the sentence is dismissed.
3.
The sentence of 15 years imprisonment imposed by the Regional Court
as well as the order that 3 years of the sentence run concurrently
with the sentence that the appellant is currently serving, are
confirmed. This sentence and order are to take effect on 2 May 2007,
the date of sentence by the court a quo.
PAL
GAMBLE
Acting
Judge of the
Western
Cape High Court
I
agree.
It
is so ordered
W
J LOUW
Judge
of the Western Cape High Court
1
Shabalalaand
Others v Attorney-General and Another 19% (J) SA 725 (CC); S v
Shikunga
1997 (9) BCLR 132]
(NmS);
Tshona
and
Others v Regional Magistrate, Uitenhage and Another 2001 (S) BCLR
860 (E); S v Mazingane
2002 (6) BCLR 634
(W);
2
The
matter was. in any event, not disposed of on 20 November and
continued on 7 December 2006 and
thereafter
on 24 January 2007 and was finalised on
2
May
2007.
3
1
S v Saule
2009 (1) SACR 196
(Ck)
4
S
v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at p 651 J
5
S
v Seheri 1964(1) SA 29 (A); S v Manguanvana 1996 (2) SACK 283
(E):
S
v Philemon 1997 (2) SACR 651 (W)
6
S
v Shabangu
1976 (3) SA 555
(A); S v Maduana en 'n Ander
1997 (1)
SACR 646
(T)
7
R
v Garnsworthy and Others
1923 WLD 17
8
S
v Thebus and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC)
9
S
v Mgedezi 1969(1) SA 6S7 (A);Sv Petersen
1989 (3) SA 420
(AY, S v
Yelani 1989(21 SA 43 (A);S v Jama and Others
1989 (3) SA 427
(A);
Magmoed v Janse van Rensburg 1993 (1) S 777 (A): S v Mofaung and
Others
[1990] ZASCA 75
;
1990 (4) SA 485
(A): S v Khumalo en Andere 199!
(4)
SA
3 10 (A); S v Singo !
993 (2) SA 765
(A)
10
1969
(2) SA 637
(A) at 640 F - H
11
1988
(1)
SA 868
(A) at 897 B
12
S
v Thomo and Others 1969 (1) SA 385 (A)
13
[2006] ZASCA 43
;
2006
(2) SACR 8
(SCA) at 20(d)