THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 221/2022
In the matter between:
PRENASHAN GOVENDER APPELLANT
and
THE STATE RESPONDENT
Neutral Citation: Govender v The State (221/2022) [2023] ZASCA 60 (3 May
2023)
Coram: SCHIPPERS and CARELSE JJA , and NHLANGULELA and
SIWENDU and UNTERHALTER AJJA
Heard: 24 February 2023
Delivered: 3 May 2023
Summary: Criminal Law – murder – common purpose – conviction on direct
and circumstantial evidence – presence at scene, active association and intent
proved – failure to testify – conviction upheld.
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ORDER
________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg
(Mokgoathleng J, Makhoba J and V an der Westhuizen AJ sitting as court of
appeal):
The appeal is dismissed.
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JUDGMENT
________________________________________________________________
Siwendu AJA (Schippers and Carelse JJA and Nhlangulela and Unterhalter
AJJA concurring):
[1] The appellant was charged in the Gauteng Division of the High Court,
Johannesburg (the high court) with two counts of murder and various
contraventions of the Firearms Control Act 60 of 2000 (the Act) .1 He was
convicted on the murder charges and sentenced to life imprisonment on each
count. An appeal against conviction and sentence to a full court of the high court
(the full court) was dismissed. He was granted special leave to appeal to this
Court.
[2] The conviction follows the fatal shooting of two persons on
12 August 2018 at a restaurant and club in Kyalami, Johannesburg (the club), at
which the appellant, his wife and a group of friends, had attended a function. The
appellant and his co -accused, Mr Lloyd Lester Latchman ( Accused 1 ), were
convicted mainly on the evidence of Mr Mboni Maswanganye, Ms Kerisha Nair
1 For present purposes, the appellant’s conviction of contravening section 120(10)(a) of the Firearms Control Act
– giving possession of a firearm to a person who is not allowed to possess it – is relevant. The appellant was
sentenced to six months’ imprisonment for this offence.
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and Mr Tambo Dickson. The appellant was Accused 2 in the proceedings in the
trial court.
[3] Mr Maswanganye is an Uber driver who was called to the club by the
appellant to take his wife home to Randburg. His evidence, in summary , is as
follows. On arrival at the club , he found the appellant and his wife waiting
outside. He parked his vehicle close to the building, next to the stairway leading
up to the club. It was after midnight and the place where Mr Maswanganye had
parked was well lit. The appellant’s wife asked him to wait for two other
passengers. Mr Maswanganye noticed that the appellant was carrying a firearm
underneath his jacket, just below his waist.
[4] While waiting for the two passengers, a man, later identified as ‘Bilal’,
came out of the club with a bloody nose , followed by a man wearing a red
bandana. They were part of the appellant’s group. The appellant and his wife were
outraged at what happened to Bilal. The appellant removed his loaded firearm
from its holster and held it in his hand. A scuffle ensued when the man with the
red bandana attempted to restrain the appellant from going into the club and told
him to go home; whatever had happened was over.
[5] During this scuffle, Accused 1 appeared. The appellant, who still had the
firearm in his hand, walked with Accused 1 up the stairs, in the direction of the
club. When they were halfway up the stairs, Accused 1 took the firearm from the
appellant. Accused 1 did not grab or forcefully take it. Five to seven seconds later,
Mr Maswanganye heard gunshots. Shortly after the shots were fired, a man (later
identified as the deceased, Mr Theolan Nair) came running from the club. He held
his arm on his chest and shouted that he had been shot. He was followed by
Accused 1 who, Mr Maswanganye testified, was armed with a silver firearm.
Mr Maswanganye was seated in his vehicle. Accused 1 opened the rear door of
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Mr Maswanganye’s vehicle, shouting, ‘Where is he? Where is he?’, referring to
Mr Nair. The appellant’s wife was seated in the back of the vehicle. Accused 1
then left the vehicle and went in the direction that Mr Nair had gone.
Mr Maswanganye saw Accused 1 leaving in a white BMW without number
plates. The last time he saw the appellant was on the stairs, where Accused 1 had
taken the firearm.
[6] Mr Maswanganye, who himself was carrying a firearm, wanted to leave
immediately when Accused 1 came to his vehicle, but the appellant’s wife
restrained him from doing so. She wanted to be assured of the appellant’s
whereabouts. When she saw the white BMW leaving, she indicated to
Mr Maswanganye that he should leave. The appellant did not travel with his wife
to his home in Randburg, in Mr Maswanganye’s vehicle.
[7] Ms Nair worked at the club and was married to the late Mr Theolan Nair.
She testified that there was an argument inside the club between Accused 1 and
Mr Nair. Her husband’s friend, Mr Yashlin Pillay , was also involved in the
argument. A crowd gathered around them and a fight broke out. When Ms Nair
decided to approach the crowd, t he bouncers had already removed persons
involved in the fight from the club, including Accused 1 and Mr Nair. About five
to ten minutes later, Accused 1 returned to the club with a gun in his hand and
fired a shot at the ceiling. Thereafter he shot Mr Pillay in his chest at point blank
range. The patrons ran for cover. Mr Pillay died at the scene. At that point,
Mr Nair was hiding behind a pillar in the club, but Accused 1 had seen him.
Mr Nair fled and Accused 1 followed him down the stairs. While she was running
behind them, Ms Nair heard a shot. She saw Accused 1 jumping into a white
BMW which sped off. It had no number plates. Subsequently, Ms Nair found her
husband, who had been shot in the shoulder area. Attempts by paramedic s to
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resuscitate him were unsuccessful. The autopsy report states that Mr Nair died of
a penetrating gunshot wound of the thorax.
[8] Mr Dickson was one of the bouncers. He testified that a fight broke out in
the club between patrons . Accused 1 and the appellant were part of a group
involved in the fight. Mr Dickson said that he spoke to the people involved and
had calmed down the situation. He took Accused 1 outside the club and spoke to
him, while his fellow bouncers dealt with the other persons who were involved
in the fight. However, Accused 1 subsequently returned, after which Mr Dickson
heard gunshots coming from inside the club. The patrons, who took cover when
the shots were fired , only ran out of the club after Accused 1 and the appellant
had left. When Mr Dickson went back into the club, he discovered that someone
had been shot.
[9] Accused 1 testified in his own defence. He said that he had met the
appellant at the club and that they were together almost the entire night. At some
stage the appellant informed him that he was leaving because his wife was ill.
The appellant left the club. Shortly afterwards Accused 1 also left, greeted the
appellant and his wife at the Uber vehicle and left the club in his own car. Accused
1 testified that h e had not seen a firearm on the appellant, and said that the
appellant had not been involved in a scuffle with anybody. Accused 1 denied that
he had taken a firearm from the appellant, or that he shot anybody at the club.
[10] The appellant chose not to give evidence in his defence, despite the fact
that he had instructed his counsel to put the following version to
Mr Maswanganye. A group of people had come down the stairs, ‘when the scuffle
was taking place between accused 2 and the man in the bandana’. Somebody had
dispossessed the appellant of his firearm at the stairs. The appellant ‘ran upstairs
to try and retrieve and find [the person] who took his firearm’.
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[11] The main issue on appeal is whether the appellant acted in common
purpose with Accused 1 in the murder of the deceased. Counsel for the appellant
submitted that the trial court’s findings on the facts were based on ‘conjecture
and speculation’, and that it had made ‘huge quantum leaps in respect of the
evidence before it’. As to the decision of the full court, there was no evidence, so
it was submitted, ‘to suggest that the appellant’s actions were in any way linked
to that of Accused 1.’ He had not ‘formed a common purpose with Accused 1’;
and the requisites for a conviction based on common purpose had not been met.
[12] There was no evidence of a prior agreement between Accused 1 and the
appellant to murder the deceased. However, a finding that a person acted together
with another in a common purpose is not dependent upon proof of a prior
conspiracy. Such a finding may be inferred from the conduct of the participants.2
The State was therefore required to prove that the appellant had actively
associated himself with the execution of the common purpose . The concept of
active association is wider than that of agreement, since it is seldom possible to
prove a prior agreement. Consequently, it is easier to draw an inference that a
participant associated himself with the perpetrator.3
[13] This court in Mgedezi,4 outlined the following requirements for active
association in common purpose. The accused must have:
(a) been present at the scene where the violence was committed;
(b) been aware of the assault on the victim by somebody else;
(c) intended to make common purpose with the person perpetrating the assault;
(d) manifested his sharing of a common purpose by himself performing an act of
association with the conduct of the perpetrator; and
2 C R Snyman Criminal Law (5 ed 2012) at 265.
3 Snyman fn 2 at 267.
4 S v Mgedezi and Others 1989 (1) SA 705 (A) at 705 I.
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(e) have the requisite mens rea. Dolus eventualis is sufficient: the accused must
have foreseen the possibility that the acts of the perpetrator may result in the death
of the victim, and reconciled himself with that eventuality.5
[14] The State proved all these requirements in the present case. The appellant
removed his firearm from its holster and held it in his hand, with the intention of
going into the club to avenge the assault on Bilal. That is why he had to be
restrained, why a scuffle ensued and why he did not leave the club . His friend
with the red bandana had implored him to leave the scene and the Uber was right
there. The appearance of Accused 1 did not deter the appellant from going
towards the club to settle a score: he retained the firearm in his hand and
proceeded towards the club. Only when he was halfway up the stairs did Accused
1 take the firearm from the appellant. His counsel rightly conceded that he had
voluntarily relinquished possession of the firearm to Accused 1.
[15] The reason why the appellant did not proffer any resistance to the taking
of his firearm and why, even then, he did not dissociate himself from the common
purpose by leaving the club, is clear: he knew that Accused 1 was going to use
the firearm to do precisely what he (the appellant) had intended to do from the
outset – to avenge the assault on Bilal. The appellant thus knew, or foresaw the
possibility, that Accused 1 was going to use the firearm in the club which could
result in the death of a person, but nonetheless reconciled himself with th at
possibility.6 The State thus proved the requisite intent on the part of the appellant.
[16] The natural reaction of an unsuspecting person who accompanies another
armed with a deadly weapon, is to completely distance himself from the events
5 Snyman fn 2 at 268.
6 S v Ngubane 1985 (3) SA 677 (A) at 685 F
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about to unfold.7 Instead, the appellant accompanied Accused 1, who was armed
with the appellant’s firearm. He must have foreseen that Accused 1 would use the
firearm, which he did. This was not a case where the common purpose arose
spontaneously or on the spur of the moment.8 Five to seven seconds after he had
taken the firearm from the appellant, Accused 1 fired a number of shots, fatally
wounding the two deceased. Thus, both direct and circumstantial evidence point
to the presence of the appellant at the scene when these shots were fired. Where
else could he have gone with Accused 1?
[17] On these facts , the submissions by the appellant’s counsel are
unsustainable. There is direct evidence placing the appellant on the scene of the
murders: Mr Dickson testified that after the shots had been fired, Accused 1 and
the appellant ran out of the club. Of course, Mr Dickson could never have known
that they were together in the club on the night in question, unless he had seen
them. Mr Di ckson described the clothes that both Accused 1 and the appellant
were wearing, and said that Accused 1 had a tattoo on his arm. All of this
evidence, crucially, went unchallenged. It merely underscores the appellant’s acts
of association with the conduct of Accused 1. And Mr Dickson was adamant that
the patrons came running out of the club , screaming, only after Accused 1 and
the appellant had left the scene. That evidence , unsurprisingly, was not
contradicted – nobody else had fired gunshots in the club . They were the ones
who caused mayhem which resulted in the death of two persons.
[18] What is more, Mr Di ckson’s evidence is corroborated by the evidence of
both Mr Maswanganye and Ms Nair. After the shooting , Mr Maswanganye was
restrained from leaving the club because the appellant’s wife wanted to ascertain
his whereabouts. But when she saw the white BMW leaving the scene, she
7 S v Kramer en Andere 1972 (3) SA 331 (A) at 334F.
8 Snyman fn 2 at 266; S v Mambo 2006 (2) SACR 563 (SCA) para 17.
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instructed Mr Maswanganye to leave. The appellant did not travel home to
Randburg in the Uber. So how did he leave the scene, i f not with Accused 1 in
the BMW?
[19] Ms Nair testified that Accused 1 jumped into a BMW which sped off. Who
else, other than the appellant, could have driven the BMW? And both witnesses
could not have been mistaken – it was a white BMW with no number plates. So,
nothing turns on the fact that Mr Maswangan ye initially stated that he saw the
appellant getting into the BMW, but later said that the last time he had seen the
appellant was on the stairs when Accused 1 had taken firearm from him. The only
reasonable inference to be drawn from the proved facts, is that the appellant fled
the scene together with Accused 1, in the BMW.
[20] Then there is the appellant’s failure to report the loss of his firearm to the
police. This was rightly considered by the full court as but another fact pointing
to the appellant’s guilt. The evidence makes it clear that his allegation that
somebody had dispossessed him of his firearm and that he ran up the stairs in
order to retrieve it, can safely be rejected as false. The inference is ineluctable
that both Accused 1 and the appellant knew that the firearm had been instrumental
in the killi ng of the deceased; and that they were intent on suppressing that
evidence.
[21] On the totality of the evidence, which comprised mainly direct evidence
but also circumstantial evidence, the case against the appellant was damning and
called for an answer. Despite this, he chose to remain silent. In this regard, the
dictum by Holmes JA in Mthethwa9 bears repetition:
‘Where . . . there is direct prima facie evidence implicating the accused in the commission of
the offence, his failure to give evidence, whatever his reason may be for such failure, in
9 S v Mthethwa 1972 (3) SA at 769D, emphasis in the original.
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general ipso facto tends to strengthen the State case, because there is nothing to gainsay it, and
therefore less reason for doubting its credibility or reliability.’
[22] If he was innocent, the appellant could have met the State’s case with ease,
particularly in the light of the allegation that he had been dispossessed of his
firearm (and therefore it could not have been used by Accused 1 to sh oot the
deceased). Further, his counsel put it to Mr Maswanganye that a witness would
be called if the need arose to testify that the appellant had left the venue for his
own safety as soon as the gunshots were fired; and that he did not see the shooting.
The witness was never called. The full court was perfectly entitled to conclude
that the evidence against the appellant was sufficient to sustain a conviction.10
[23] The appellant was thus rightly convicted on two counts of murder. As this
Court stated in Chabalala.11
‘The appellant was faced with direct and apparently credible evidence which made him the
prime mover in the offence . . . To have remained silent in the face of the evidence was
damning. He thereby left the prima facie case to speak for itself. One is bound to conclude that
the totality of the evidence taken in conjunction with his silence excluded any reasonable doubt
about his guilt.’
[24] The appeal against sentence can be dealt with briefly. The appellant was
convicted of murder committed in furtherance of a common purpose, which
carries a mandatory life sentence. 12 The prescribed minimum sentence is the
sentence that should ordinarily be imposed in the absence of weighty justification.
A court may not depart from the prescribed sentence lightly and for flimsy
reasons.13
10 S v Boesak 2001 (1) SACR 1 (CC) para 24.
11 S v Chabalala 2003 (1) SACR 142 (SCA) para 21.
12 Section 51(1) of the Criminal Law Amendment Act 105 of 1997, read with Part 1, item (d) of Schedule 2 thereto.
13 S v Malgas 2001 (1) SACR 469 (SCA) paras 9 and 25.
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[25] As the full court observed, murder is a heinous crime. In this case the
killing of the deceased was brazen. Mr Pillay was shot at point -blank range.
Immediately thereafter, Mr Nair was followed and shot in circumstances where
his wife, who had just witnessed the murder of Mr Pillay, unsuccessfully tried to
warn him that Accused 1 was armed. The patrons in the club we re terrified and
ran for cover. The full court’s finding that there were no substanti al and
compelling circumstances which justified a deviation from the prescribed
minimum sentence, cannot be faulted.
[26] In the result, the appeal is dismissed.
_________________________
N T Y SIWENDU
ACTING JUDGE OF APPEAL
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Appearances
For the appellant: JJCS Meiring
Instructed by: BDK Attorneys, Johannesburg
Symington & De Kok Attorneys, Bloemfontein
For the respondent: E K Moseki
Instructed by: The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein