S v Dube and Others

• Jurisdiction: South Africa
• Judge: Swain J, K Pillay J and Madondo J
• Judgment Date: 14 September 2009
• Citation: 2010 (1) SACR 65 (KZP)
• Docket Number: AR 407/08
• Hearing Date: 04 September 2009
• Counsel: H Potgieter for appellants 1 - 7 and 9. J Howse for appellant 8. D Paver for the respondent.
• Court: KwaZulu-Natal High Court, Pietermaritzburg

Swain J:

[1] In the early hours of the morning of Sunday 20 March 2005 some of I the appellants were assiduously applying themselves to the task of drilling into the vault of the First National Bank (the Bank) at Harding. The remaining appellants had taken up positions as lookouts outside the Bank.

[2] The fulfilment of their objective of laying their hands on the money J in the vault was, however, frustrated by the arrival of the police, who

Swain J

surrounded the Bank. In the course of an attempt to escape by those A appellants inside the Bank, one of their number was shot by Detective Inspector Crouse, and died from his wounds a few days later. All of the appellants were arrested.

[3] As a consequence, they all appeared before Theron J and two assessors to answer to the following charges: B

[3.1]

Count 1: Housebreaking with intent to commit theft and attempted theft;

[3.2]

Count 2: Murder;

[3.3]

Count 3: Attempted murder;

of which they were convicted and sentenced to terms of imprisonment, C the details of which I will deal with in due course.

[4] Leave to appeal against the convictions on counts 2 and 3, as well as the sentences imposed on all of the counts, was thereafter granted by the learned judge. D

[5] What was established by the evidence was that all of the appellants were party to a common purpose to break into the Bank and steal the money in its vault, which formed the basis for their conviction on count 1. The sole issue raised in respect of the challenged convictions is whether the court a quo correctly found, on the facts, that the State had E established, beyond a reasonable doubt, that the appellants possessed the requisite subjective intention in respect of the counts of murder and attempted murder. In other words, intention in the form of dolus eventualis, because it was clear, on the evidence, that the will of the appellants was obviously not directed at the death of their cohort (dolus directus), nor at the attempted murder of Detective Inspector Crouse by F their deceased cohort.

[6] As stated by Holmes JA in S v Sigwahla 1967 (4) SA 566 (A) at 570E - F:

'Subjective foresight, like any other factual issue, may be proved by G inference. To constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so, and even if he probably did do so.'

[7] In similar vein is the following dictum of Olivier JA in S v Lungile and H Another 1999 (2) SACR 597 (SCA) at 602h - i, para 16:

But this Court has cautioned, on several occasions, that one should not too readily proceed from ought to have foreseen to must have foreseen and hence to by necessary inference in fact did foresee the possible consequences of the conduct inquired into. Dolus being a I subjective state of mind, the several thought processes attributed to an accused must be established beyond any reasonable doubt, having due regard to the particular circumstances of the case.'

[8] The drawing of an inference from the proved facts that an accused 'foresaw a particular consequence of his acts can only be answered by J

Swain J

A way of deductive reasoning. Because such reasoning can be misleading, one must be cautious.' Lungile's case supra at 603a - b.

[9] The following proved facts relevant to this enquiry emerge from the evidence of Mr Emile Lundall and Detective Inspector Crouse, both of B whom gave evidence on behalf of the State. The evidence of Lundall is of particular importance, because he was privy to all of the planning of the break-in of the Bank by the appellants. The appellants believed they had successfully bribed him to participate in their criminal mission, to ensure that he did not reveal any activation of the alarm at the Bank, which was monitored by his employer, Prestige Security. The truth of the C matter, however, was that he had revealed the plans of the appellants to his employer and the South African Police Services (SAPS) at the outset, and had kept the SAPS apprised of developments as the planning proceeded.

[10] The following facts emerge from Lundall's evidence:

[10.1]

D The appellants were not planning a robbery, but a break-in of the Bank and would require a three-hour period, during which he would be required to keep people away from the vicinity of the Bank, not reveal what they were doing and, if the alarm were activated, to respond to it, but not reveal their presence. Because E they had specialist alarm people involved, they were confident that, if the alarm did go off, it would only sound once.

[10.2]

They had obtained the co-operation of the Harding SAPS, as well as the investigating officer, if anything went wrong.

[10.3]

Lundall informed two of the appellants that the Bank had F requested him to place a guard at the Bank, for the weekend when the break-in was planned, because the drop safe in front of the Bank was broken. They wanted to know if the guard would be armed or unarmed, and he responded that he would be unarmed. The appellants discussed this issue, and then told Lundall that he must place an 'oldish' guard there for the weekend. They said G they would kidnap the guard, tie him up and take him somewhere for the duration of the break-in. When Lundall told them that they must not hurt the guard, they said this would not be a problem. However, he was told later that no guard must be placed at the Bank, to which he agreed.

[10.4]

H Lundall was also told that they would break into the back of the Bank and, if he had to respond to the alarm which may go off once, that he must not alert anybody. In addition, he was needed to chase away any people walking next to the Bank because there would be a risk of noise from drilling into the vault. In addition, he was told that the policeman on duty that night had a cellphone I on him, so that they would be able to contact him.

[10.5]

Shortly after the appellants broke into the Bank, Lundall was advised by his office that the alarm had gone off, and he contacted Superintendent Claasen, who responded that the police were in position, that he must go to the scene, check it as normal and J report that all was in order. This was at approximately 02h35.

Swain J

[10.6]

On his arrival at the Bank he noticed a police van parked in the A vicinity. This police...