S v Gumede

• Jurisdiction: South Africa
• Judge: Hofmeyr JA, Fannin JA and Van Coller AJA
• Judgment Date: 19 April 1982
• Citation: 1983 (4) SA 803 (TKA)
• Hearing Date: 09 March 1982
• Court: Transkei Appellate Division

Hofmeyr JA:

The appellant was charged with murder and robbery, both crimes having been committed at the Mountain Home store in the district of Umzimkulu and on 30 June 1980. He was indicted and tried in the Umzimkulu Circuit Court on 3 and 4 November E 1981. Having been convicted of murder without extenuating circumstances, he was sentenced to death. On the robbery count he was, after a plea of guilty, convicted and sentenced to five years' imprisonment. Leave to appeal to this Court on the murder count was granted by the trial Judge on 11 December 1981 and the appeal was heard in this Court on 9 March 1982.

F The parties were requested at the end of the hearing to submit written argument on a number of questions. In view of the conclusion I have finally reached these submissions need not be discussed in detail. Counsel are thanked for their assistance in exploring various angles in the case. I should, G however, at the outset state my views regarding the submission on behalf of the respondent that:

"Section 140 (b) of Act 24 of 1886 per se does not apply to the appellant. The section by itself does not contemplate multiple killers save perhaps in the sense of the assassination of Julius Caesar type of case in which each of the conspirators struck a blow."

It was in my opinion for the purpose of providing for cases H involving multiple killers that s 78 of the Code was enacted. It must be appreciated that s 78 cannot stand by itself. It was not enacted for any particular offence and the substantive offence for which it is invoked in any given case must be clearly defined, whether it be a statutory or a common law offence.

The abovementioned proposition of the respondent can therefore only be correct as far as it goes. Section 140 (b) of the Code can and, in suitable circumstances, must be read with s 78 in cases where an

Hofmeyr JA

accused has been involved in the commission of an offence with one or more participants, whether he be prosecuted alone or with the other participants.

The State alleges that the appellant and his cousin-brother (apparently a son of his uncle) visited the deceased's A abovementioned store in the early afternoon of 30 June 1980. They entered the store three times to buy, firstly tobacco, then bubble gum and finally blue butter and glycerine. They were sitting just outside the store for a considerable time between these purchases. On the third occasion the appellant's companion produced a revolver and fired three shots. The first shot appears not to have been aimed at the deceased, one B William Cwele, the manager of the store, and it did not hit him. The second shot was aimed at the deceased at point blank range across the counter. The shot struck him in the abdomen and he died in hospital two days later. The appellant's cousin fired the third shot at youths who had been working in C the garden behind the store. They apparently intended to come to the assistance of the deceased and his wife, Patience, who had raised the alarm, but fled when the third shot was fired. The appellant was standing next to his cousin at the counter when the latter was pointing the revolver at the deceased. He did not, however, do or say anything, nor did he seem to be D either shocked or surprised by the production of a revolver or by the firing of the shots. He went to an adjacent room to cut the telephone wires and proceeded thereafter to empty the till in the store while his companion forced the deceased to open the safe. It is not alleged what he stole from the safe. After the third shot the two participants in the robbery left the E store together. They divided the proceeds on the way and returned straight home without any thought of visiting their aunt as they were initially supposed to do.

This short précis of the evidence is virtually common cause and is merely intended, at this stage, to identify the issues which will have to be considered. The appellant's cousin succeeded in F escaping the long arm of the law and the appellant had the misfortune of standing his trial alone. His defence was that he was unaware of the fact that his cousin possessed a revolver and would produce it at the store. He averred, furthermore, that he acted throughout under duress and as a result of his cousin's threats to kill him.

G The State charged the appellant with the statutory offence of murder in contravention of s 140 read with s 142 of Act 24 of 1886 (C) as amended by Proc 17 of 1940 (the Transkeian Penal Code). As far as is relevant s 140 reads as follows:

"Culpable homicide becomes murder in the following cases:

(a)

if the offender means to cause the death of the person killed;

(b)

if the offender means to cause the person killed any bodily H injury which is known to the offender to be likely to cause death, and if the offender, whether he does or does not mean to cause death, is reckless whether death ensues or not."

Culpable homicide is defined in s 135 of the Code as follows:

"Homicide is culpable where it consists in the killing of any person whether by an unlawful act or by a culpable omission to perform or observe any legal duty, or by both combined or..."

(not relevant to the present case).

Hofmeyr JA

It has been accepted both at the trial and on appeal that the State must therefore prove beyond reasonable doubt that the appellant was aware of the likelihood (not the possibility, as in South Africa) that the bodily injury inflicted on the A deceased would cause his death and that he was reckless as to whether death resulted or not (see S v Sikweza 1974 (4) SA 732 (A)).

Since the appellant admittedly did not fire the fatal shot the State would, therefore, according to South African common law, have to rely upon the so-called doctrine of common purpose in B order to prove him guilty of murder. It is interesting to note that it has even been said that there is no magic about the doctrine of common purpose and that there is no need for a special doctrine or rule in cases of the instant kind. This is because the accused must in such cases be held liable for his own mens rea. Although a participant in a common design, his mens rea may consist of an intention to kill, making him guilty C of murder while another participant may have been merely negligent in relation to the result of the common design and thus be guilty of culpable homicide only (see South African Criminal Law and Procedure by Burchell and Hunt at 363, relying on R v Chenjere 1960 (1) SA 473 (FC) at 476 and R v Hercules 1954 (3) SA 826 (A) at 830 and 831).

D At one time a doubt was felt in South Africa whether a common design could result in the parties being held guilty of culpable homicide. This doubt was resolved by SCHREINER JA in R v Geere and Others 1952 (2) SA 319 (A) at 323. Such a position would arise where there was a common purpose to do an unlawful act or acts which caused the death, without the elements of E contemplation of the death and recklessness which would make them guilty of murder. It has since been suggested that the dictum could, in South Africa, in view of the decision in the case of S v Bernardus 1965 (3) SA 287 (A), only relate to cases of negligence, otherwise the State would be relying upon the versari in re illicita rule which had been discarded as unsound F in the Bernardus case. (See Strauss in (1963) 26 Tydskrif vir Hedendaagse Romeins-Hollandse Reg, referred to by Burchell and Hunt (op cit at 366 note 157).) Since in Transkei s 135 of the Penal Code only requires the unlawfulness of the injury which caused death, the abovementioned dictum of SCHREINER JA would G here cover cases in which negligence is not present but it could apply equally to cases in where the unlawfulness of the act or omission is alleged to have arisen out of negligence. (See R v Mkize 1946 AD 197 at 204.) Such a situation actually came before the Court in South Africa (see S v Ngobozi 1972 (3) SA 476 (A) at 478) where it was held that an accused would be guilty of culpable homicide if he should have foreseen the H possibility (in Transkei, the likelihood) that the common design would cause death.

It was submitted on behalf of the appellant inter alia that he might be guilty of culpable homicide instead of murder. Reliance was placed on the South African common law substantially as set out above and the modified version applicable to Transkei. (See S v Sikweza 1974 (4) SA 732 (A).)

The effect of the decisions of the South African Supreme Court and

Hofmeyr JA

the Courts of Transkei is discussed in an interesting article by A C Beck of the University of Transkei entitled "Stare Decisis - South Africa and Transkei" South African Law Journal vol 98 part III August 1981 at 353 et seq. The subject will no doubt come up for decision at some future occasion when A this article should prove to be of considerable assistance to the Court. In the present context the Appellate Division itself indicated in how far the South African common law has been modified in Transkei by the provisions of s 140 of the Penal Code of Transkei (Act 24 of 1886). (See S v Sikweza (supra).)

It was also submitted on behalf of the appellant that the appellant could be found guilty of culpable homicide if s 78 of B the Penal Code could be interpreted to allow for such a verdict on the basis that the unlawful killing of the deceased was unintentional and unnecessary as far as the appellant was concerned. The submission was made on the supposition that the actual perpetrator could at the same time be found guilty of C murder.

Section 78 of the Code is of application in respect of crimes generally and reads as follows:

"If several persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of such common purpose, the commission of D which offence...