S v Jama and Others

• Jurisdiction: South Africa
• Citation: 1989 (3) SA 427 (A)

S v Jama and Others
1989 (3) SA 427 (A)

1989 (3) SA p427

Citation	1989 (3) SA 427 (A)
Court	Appellate Division
Judge	Botha JA, Hefer JA, Vivier JA
Heard	March 14, 1989
Judgment	March 30, 1989

Flynote : Sleutelwoorde G

Criminal law — Murder — Mens rea — Common purpose — Group violence — Meeting attended by accused and others — Group thereafter moving off to a house where three persons fatally assaulted — No evidence of any decision having been taken at meeting — For H liability on the basis of common purpose, insufficient to prove merely that accused present at the meeting and at the house where deceased persons were assaulted, even though they may have gone to the house with the crowd with full knowledge of crimes about to be perpetrated there. I Criminal procedure — Evidence — Burden of proof — Onus on State — Rejection of defence evidence — Trial Court adopting global view of totality of defence evidence in order to reject the evidence of individual accused — Such not permissible and constituting a gross misdirection — Court to consider the evidence of each J accused separately and individually, weigh it up against evidence

1989 (3) SA p428

A of State witness(es) who implicate each accused and on that basis assess whether each accused's evidence reasonably possibly true.

Headnote : Kopnota

Where persons have been killed as a result of violence by a group of people and it is sought to hold persons liable for the murder of B the deceased on the basis of common purpose, the principles set out in S v Safatsa and Others 1988 (1) SA 868 (A) at 893 - 901 and S v Mgedezi and Others 1989 (1) SA 687 (A) at 705I - 706B are applicable and all the requirements there set out have to be proved beyond a reasonable doubt in the case of each accused. Where, as in the present case, the group of people held a meeting and then proceeded to the house of one of the deceased persons where the three deceased were fatally assaulted, the requirements that each accused must have intended to make common C cause with those who were actually perpetrating the assault and that each accused 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 the others, cannot be established by proof merely of the accused's presence at the meeting and later at the house where the assaults took place, even though they might have gone to the house with the rest of the crowd, knowing full well of the D crimes which were about to be perpetrated there. It is only by positive proof of the acts of each individual accused, either at the meeting or at the house, that the aforementioned requirements can be established.

The Court, accordingly, held that the guilt of the appellants had not been established where it appeared that they had attended the meeting which preceded the assaults, but that there was no reliable evidence E of the events which took place at the meeting and therefore no evidence that any decision had been taken at the meeting, and that the evidence identifying the appellants as members of the crowd present at the scene where the crimes were committed was so thoroughly unreliable that it should have been rejected in toto by the trial Court.

In analysing the evidence before the trial Court and the trial Court's assessment thereof, the Court held that the trial Court had seriously misdirected itself by adopting a global view of the totality of the defence cases in order to reject the evidence of an individual F accused. Such an approach was not permissible and constituted a serious misdirection.

Dicta in S v Mgedezi and Others 1989 (1) SA 687 (A) at 703B - F applied.

Case Information

Appeal from convictions and sentences in the King William's Town Circuit Local Division (Beckley J). The facts appear from the judgment of Vivier JA.

G T L Skweyiya (with him L Pitje ) for the appellants referred to the following authorities: As to the need for caution in the treatment of evidence of identification and the factors to be taken into account in dealing with its reliability, see S v Shekelele and Another 1953 (1) SA 636 (T) at 638; S v Dladla and Others 1962 (1) SA 307 (A) at 310C; S H v Mehlape 1963 (2) SA 29 (A) at 32F - G; S v Mthethwa 1972 (3) SA 766 (A) at 793; S v Ngcobo 1986 (1) SA 905 (N); Hoffmann and Zeffertt South African Law of Evidence 3rd ed at 478 - 81. As to the assessment of the credibility of the witnesses, see H C Nicholas 'Credibility of Witnesses' (1985) 102 SALJ 32. As to the need for corroboration of accomplice evidence, see R v Kilbourne 1973 AC 729 (HL) at 746E - I 747A. As to whether the Court should be satisfied with the evidence of persons in detention, see S v Kibi 1978 (4) SA 173 (E) at 178C - D; S v Hassim 1973 (3) SA 443 (A) at 454E - H, 455A - B; S v Hoffman and Others (case No 475/76, CPD, 18 March 1976); S v Christie 1982 (1) SA 464 (A); C R Nicholson 'Admissibility and Reliability of Detainee J Evidence' (1982) 6 SA Journal of Criminal Law and Criminology 250; S v Mvula en 'n Ander 1979 (2) PH

1989 (3) SA p429

A H135 (C). As to the cautionary rule applicable to accomplice evidence, see R v Ncanana 1948 (4) SA 399 (A); S v Hlapezula and Others 1965 (4) SA 439 at 440D - H; S v Malapane 1979 (1) SA 1009 (W) at 1017C - D; R v Mpompotshe and Another 1958 (4) SA 471 (A) at 476; S v Avon Bottle Store (Pty) Ltd and Others 1963 (2) SA 389 (A) at 393F; S v Ismael and Others 1965 (1) SA 452 (N) at 454A; S v Van Vreden 1969 (2) SA 524 (N) B at 531H - 532H; R v Thielke 1918 AD 373 at 377; R v Lakutula 1919 AD 362 at 364; S v Oosthuizen 1982 (3) SA 571 (T) at 577B - C. As to the discharging of the onus of proof resting on the State, see S v Munyai 1986 (4) SA 712 (V); S v Khubeka 1982 (1) SA 534 (W) at 537; R v Biya 1952 (4) SA 514 (A) at 521D - E; S v Hlapezula and Others (supra at 442); S v Singh 1975 (1) SA 227 (N) at 228; S v Guess 1976 (4) SA 715 (A) C at 718H. As to the correct approach to the assessment of the evidence of accused persons, see S v Muller 1980 PH H122 (C); R v Malan 1947 PH H38 (A); R v Difford 1937 AD at 373; R v M 1946 AD at 1026 - 7; S v Munyai (supra ); S v Khubeka 1982 (1) SA 534 (W) at 537; R v Mthembu D 1956 (4) SA 334 (T) at 336A; S v Mtsweni 1985 (1) SA 590 (A); S v Lujaba 1987 (1) SA 226 (A). As to the failure of the State to call certain witnesses and the adverse inference to be drawn therefrom, see R v Bezuidenhout 1954 (3) SA 188 (A) at 196H; Brandt v Minister of Justice 1959 (4) SA 712 (A); S v Kelly 1980 (3) SA 301 (A) at 311B - G; S v Teixeira 1980 (3) SA 755 (A) at 764A - B. As to extenuating E circumstances, see S v Nxele 1973 (3) SA 753 (A); S v Mgubane 1980 (2) SA 741 (A); R v Fundakubi 1948 (3) SA 810 (A); S v Letsolo 1970 (3) SA 476 (A).

S J Redpath for the State referred to the following authorities: As to the value of letter referred to in evidence on extenuating F circumstances as being corroborative of the identification of the appellants, see S v Mavhungu 1981 (1) SA 56 (A) at 65G. As to the approach of the trial Court to the evidence, see S v Snyman 1968 (2) SA 582 (A) at 589E - H; Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A) at 574A; S v Sigwahla 1967 (4) SA 566 (A) at 569H; New Zealand G Construction (Pty) Ltd v Carpet Craft 1976 (1) SA 345 (N) at 349C - G. As to whether an adverse inference is to be drawn against either the State or the defence for failing to call certain witnesses, see S v Teixeira 1980 (3) SA 755 (A) at 764A. As to corroboration of the outline of the eye-witness evidence, see S v Dambalaza 1964 (2) SA 783 (A) at H 785H, and its consistency with the inherent probabilities, S v Guess 1976 (4) SA 715 (A) at 718F - 719A. As to the importance of corroboration of evidence of identification, see S v Hlongwane 1959 (3) SA 337 (A) at 339G - H. As to the corroboration of accomplice evidence, see S v Avon Bottle Store (Pty) Ltd 1963 (2) SA 389 (A); S v Hlapezula and Others 1965 (4) SA 439 (A); S v Snyman (supra ). As to the effect of I the failure by the appellants to disclose their alibis, see R v Biya 1952 (4) SA 514 (A); S v Hlongwane (supra ); R v Mashelele and Another 1944 AD 571. As to common purpose, see Burchell and Hunt SA Criminal Law and Procedure vol 1 2nd ed at 431 and footnote 181 and see also footnote 215 at 434; S v Nkombani 1963 (4) SA 877 (A); S v Khoza 1982 (3) SA 1019 (A) J ; Snyman Criminal Law English ed at 210; S v Dambalaza (supra ); S v Safatsa and Others 1988 (2) SA 868 (A). As to

1989 (3) SA p430

A extenuating circumstances, see S v Ngoma 1984 (3) SA 666 (A); S v Letsolo 1970 (3) SA 476 (A); S v Babada 1964 (1) SA 26 (A); S v Nxele 1973 (3) SA 753 (A) at 757.

Skweyiya (with him Pitje ) in reply referred to the following authorities: As to the minimum of necessary proof for a heinous B crime, see Hornal v Neuberger Products Ltd [1957] 1 QB 247 (CA) at 262 ([1956] 3 All ER 970); Bater v Bater 1951 P 35 at 36 - 7 ([1950] 2 All ER 458); Hoffmann and Zeffertt SA Law of Evidence 3rd ed at 410. As to whether it is correct to expect an accused to advance reasons why State witnesses should lie, see S v Kubeka 1982 (1) SA 534 (W) at 536H - 537D; R v Mthembu 1956 (4) SA 334 (T) at 336A. As to the failure of the C trial Court to apply its mind to the fact that the State witnesses were in detention, see S v Kellner 1963 (2) SA 435 (A) at 436, and the need for greater caution where such witnesses are accomplices, S v Mvula en 'n Ander 1979 (2) PH H135 (C). As to the right of an accused to decline to answer questions before trial, and elect not to give evidence, D see Rossouw v Sachs 1964 (2) SA 551 (A) at 559D - G. As to the assessment of an accused's evidence, see S v Govazela 1987 (4) SA 297 (O); S v Abrahams 1980 (2) PH H132 (C). As to the effect of the failure to give consideration to the...